Aijazi (Migration)

[2024] AATA 2203

Aijazi (Migration) [2024] AATA 2203 (5 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sana Tamjid Aijazi

VISA APPLICANT:  Mr Faheem Patel

CASE NUMBER:  2301376

HOME AFFAIRS REFERENCE(S):          BCC2022/5370940

MEMBER:Stephen Conwell

DATE:5 March 2024

PLACE OF DECISION:  Perth

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 05 March 2024 at 4:34pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visiting family Tribunal is satisfied that the applicant is the sponsor’s brother – applicant is sponsored by a relative – applicant is sponsored by a settled Australian permanent resident, who is at least 18 years old and a relative of the applicant – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, r 1.03, Schedule 2, cl 600.232

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 Home Affairs on 31 January 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 12 December 2022. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in 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 (Cth) (the Regulations). Relevantly to this case, they include cl 600.232 which sets out the sponsorship requirements. The delegate refused to grant the visa on the basis that the applicant did not meet cl 600.232(2)(a) because she did not provide any evidence that her sponsor was a relative.

4. The review applicant (the sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the sponsor on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

7. The issue in this case is whether the applicant satisfies the requirements of cl.600.232.

8. Clause 600.232 provides that:

   (1)  One of subclauses (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. 

9. In the present case, the sponsor has sponsored the applicant for this visa. The sponsor claims that she is a settled Australian permanent resident. In the absence of evidence to the contrary, the Tribunal is satisfied that the applicant is sponsored by a settled Australian permanent resident who is at least 18 years old.

10. In regard to whether the sponsor and applicant are relatives, as defined, the evidence includes:

    ·      the sponsor’s Australian citizenship application in which the applicant is identified as one of her brothers;

    ·      the parties’ Family Registration Certificate from Pakistan, identifying their common parents and recording that the applicant and sponsor as siblings;

    ·      the applicant’s Pakistani birth certificate and passport;

    ·      the sponsor’s Pakistani birth certificate and passport; and

    ·      the parties’ Pakistani citizenship identity cards.

11. All of the evidence confirms the names and dates of birth of the parties and supports their claim to be siblings.

12. The definition of ‘relative’ in r.1.03 of the Regulations includes a ‘close relative’ which is also defined to include brother or sister which is the relationship between the parties. Having considered the evidence, the Tribunal is satisfied that the applicant is the sponsor’s brother, as claimed. Consequently, the Tribunal is satisfied that the applicant is sponsored by a relative.

13. In view of the above, the Tribunal finds that the applicant is sponsored by a settled Australian permanent resident, who is at least 18 years old and a relative of the applicant.

14. Therefore, the Tribunal finds that the applicant satisfies the requirements of cl 600.232.

    DECISION

15. 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.

    Stephen Conwell
    Member