1503728 (Migration)

[2015] AATA 3200

1503728 (Migration) [2015] AATA 3200 (28 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Wei Tian

CASE NUMBER:  1503728

DIBP REFERENCE(S):  BCC2009/67238

MEMBER:Bruce MacCarthy

DATE:28 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

Statement made on 28 July 2015 at 1:06pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 February 2015 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 August 2008. At the time the visa application was lodged, Class VB contained three subclasses: 885, 886 and 887. The completed application form indicates that the relevant subclass in this case is Subclass 886, the criteria for which are set out in Part 886 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.886.222 of Schedule 2 to the Regulations because the person who had sponsored the applicant was not a person who satisfied the requirements of cl.886.222.(3)(a)(iv) of Schedule 2 to the Regulations. Although not explicitly stated in the in the delegate’s decision record, it is implicit that the applicant was not nominated by a state or territory government agency in accordance with cl.886.222.(2)(a). Even though the applicant did not apply for, or seek to meet the criteria for, Subclasses 885 and 887 the delegate found that she did not meet the requirements either of those subclasses.

4. On 5 June 2015, the applicant advised the Tribunal that she did not wish to give oral evidence and present arguments at a hearing.  She asked the Tribunal to make a decision on her case without a hearing.  This matter has therefore been determined on the evidence available to the Tribunal.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant has the requisite sponsorship or nomination in accordance with the provisions of cl.886.222 of schedule 2 to the Regulations. The terms of that clause after set out in the delegate’s decision record, a copy of which the applicant has provided to the Tribunal.

6. When the applicant applied for the visa, she was married, and her sponsor was her husband’s sister.  However, as stated in the decision under review and in documents submitted by the applicant to the Tribunal), she separated from her husband in January 2009 and later commenced a relationship with another man.  As a result of that later relationship, her child first was born in 2012.  She has provided evidence that she is currently pregnant with her second child.

7. On the basis of this evidence, the Tribunal finds that the applicant is no longer the spouse (as defined in r.1.15A) of the man she married in 2009 as they no longer have a mutual commitment to a shared life as a husband and wife to the exclusion of all others.  It follows from this finding that the person who originally sponsored the applicant is not related to either the applicant or a person who is her spouse or interdependent partner.

8. Given this finding, and in the absence of any nomination by any other suitable person, the Tribunal finds that the applicant does not satisfy the requirements of cl. 886.222(3).  As there is no evidence which would suggest that the applicant is nominated by a state or territory government agency in accordance with cl.886.222.(2)(a), the Tribunal finds that she does not satisfy the requirements of cl. 886.222(2), and therefore does not satisfy the requirements of cl. 886.222 as a whole.

9. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 886 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

   Ministerial intervention

10. When asking the Tribunal to make a decision on the papers, without holding a hearing, the applicant said she wished to do this so that she could seek ministerial intervention.

11. She enclosed a copy of a letter in which indicates that she had sought ministerial intervention unders.351 of the Act but had been advised that in the absence of a decision by the Tribunal, intervention was not possible.

12. She has the asserted that her son is an Australian citizen and, given that it is stated in the delegate’s decision record that the father of the child is an Australian citizen, the Tribunal accepts that this is the case.  Presumably, the child who is soon to be born will be an Australian citizen also.  Apparently, the relationship between the applicant and the father of the child has broken down and the applicant is her son’s sole carer. 

13. In these circumstances, the Tribunal considers it desirable that the applicant be permitted to remain in Australia.  If she were forced to leave the country, it appears she would need to take the children with her in these circumstances, the Tribunal considers it appropriate to recommend that the matter be brought to the Minister’s attention.

    DECISION

14. The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

    Bruce MacCarthy
    Member