1603830 (Migration)

[2016] AATA 4432

1603830 (Migration) [2016] AATA 4432 (21 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Reylina Tenorio

VISA APPLICANT:  Mr William Manalo

CASE NUMBER:  1603830

DIBP REFERENCE(S):  BCC2016/635872

MEMBER:Steve Georgiadis

DATE:21 September 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.232 of Schedule 2 to the Regulations.

Statement made on 21 September 2016 at 6:27pm

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 17 March 2016 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 14 February 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria for a Visitor (Short Stay) visa to be considered under the criteria for the Sponsored Family stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.232, which requires the visa applicant to satisfy the Minister that the visa applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 years and is a relative or satisfies one of the other relevant categories for the grant of the visa at the time of application. The relevant and related criteria for cl.600.232 are attached at the end of this decision.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.232 because the delegate considered the visa applicant did not have an eligible sponsor - either a ‘close relative’ or other relevant category.

5. The review applicant appeared before the Tribunal on 21 September 2016 to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether cl.600.232 is met, which requires the Tribunal to be satisfied that the visa applicant has an eligible sponsor.

8. Essentially cl.600.232 (2)(a) requires that the visa applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 years and is a relative.  'Relative' is defined in the Act under r.1.03, and includes a close relative. 'Close relative' is defined as a spouse or de facto partner, a child, parent or brother or sister, or a step-child, step-brother or (relevantly) step-sister.

9. 'Settled' is defined in Regulation 1.03 as "lawfully resident in Australia for a reasonable period".  The Tribunal is satisfied from the review applicant’s Australian Citizenship Certificate dated 21 October 2011 that she is an Australian citizen. Her date of birth is 27 December 1963. The Tribunal is satisfied from the review applicant’s oral evidence and available documents before it that she has studied, worked and lived in Australia for many years.  The Tribunal finds therefore, that the review applicant is a 'Settled' (as defined in Regulation 1.03) Australian citizen.

10. The delegate found that the visa applicant did not satisfy cl.600.232(2)(a) because ‘cousin’ of the sponsor is not an eligible relative under the definition. However, cl.600.232 is satisfied if any one of sub-clauses (2) to (4) is met. The delegate considered that the visa applicant did not meet the alternative limbs of cl.600.232, specifically:

    ·cl.600.232 (2)(b) - a relative of another applicant who is a member of the family unit of the applicant; or

    ·cl.600.232 (2)(c) - a relative of another applicant in relation to whom the applicant is a member of the family unit.

11. The definition of ‘relative’ and therefore ‘close relative’ includes the relation of step-sister of the person.

12. In this case the visa application includes a sponsorship form completed and signed by the review applicant and names more than one applicant.  The Form 1149 application for sponsorship for Sponsored Family Visitors includes the applicant, Rose Mary Umali, having been made together as a combined application with the visa applicant, William Manalo.

13. The Tribunal is satisfied on the basis of oral and written evidence before it that the sponsor is Ms Umali’s step-sister as they share the same biological mother. This also means that the visa applicant and Ms Umali are biological cousins as the visa applicant’s father is the natural brother of the sponsor’s biological mother. The review applicant’s oral evidence is that for many years they all lived in the same city of Bandar Seri in Brunei and were very close as a family.

14. As the visa applicant made the application for a Subclass 600 visa at the same time on the combined Form 1149 as Ms Umali, the Tribunal finds that the visa applicant satisfies the alternative limbs of cl.600.232, specifically that he is sponsored by:

    ·a relative (step-sister) of another applicant (Ms Umali) who is a member of the family unit of the applicant: cl.600.232 (2)(b); or

    ·a relative (step-sister) of another applicant (Ms Umali) in relation to whom the applicant is a member of the family unit: cl.600.232 (2)(c).

15. On this basis the Tribunal is satisfied that the visa applicant meets the requirements of sub-clause (b) and/or (c) above.

16. As the review applicant, a settled Australian citizen aged over 18 years has sponsored the visa applicant (and indeed Ms Umali in a combined application) the Tribunal is satisfied that the visa applicant meets the requirements of cl.600.232 (2)(b) and / or cl.600.232 (2)(c) (and therefore cl.600.232 (2)), for the grant of the visa.

17. For the above reasons the Tribunal is satisfied that the visa applicant meets cl.600.232.

18. Given these finding, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 600 visa.

    DECISION

19. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.232 of Schedule 2 to the Regulations.

    Steve Georgiadis
    Member

    
    

    Schedule 2 - cl.600.232

    (1) One of sub-clauses (2) to (4) applies.

    (2) The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 and:

    (a) a relative of the applicant; or

    (b) a relative of another applicant who is a member of the family unit of the applicant; or

    (c) a relative of another applicant in relation to whom the applicant is a member of the family unit.

    (3) The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent

    resident, who:

    (a) is a member of the Commonwealth Parliament or a State Parliament; or

    (b) is a member of the Legislative Assembly of the Australian Capital Territory or the

    Northern Territory; or

    (c) holds the office of mayor.

    (4) The applicant Is sponsored by a Commonwealth government agency or instrumentality or a State or Territory government agency or instrumentality.

    Regulation 1.03

    relative, in relation to a person, means:

    (a) in the case of an applicant for a Subclass 200 (Refugee) visa or a Protection (Class XA) visa:

    (i) a close relative; or

    (ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step- grandchild, step-aunt, step-uncle, step-niece or step-nephew; or

    (Iii) a first or second cousin; or

    (b) in any other case:

    (i) a close relative; or

    (ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

    close relative, in relation to a person, means:

    (a) the spouse or de facto partner of the person; or

    (b) a child, parent, brother or sister of the person; or

    (c) a step-child, step-brother or step-sister of the person.