Asim (Migration)

[2024] AATA 3093

Asim (Migration) [2024] AATA 3093 (19 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Wadana Asim

VISA APPLICANT:  Mr Murad Asnad Khan

CASE NUMBER:  2311397

HOME AFFAIRS REFERENCE(S):          BCC2023/3441255

MEMBER:Paul Windsor

DATE:19 July 2024

PLACE OF DECISION:  Melbourne

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

·cl 600.232 of Schedule 2 to the Regulations

Statement made on 19 July 2024 at 2:31pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – a settled Australian citizen – new documentary evidence provided – satisfied that the review applicant (the sponsor) is the visa applicant’s sister –sponsorship approved – 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 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 19 June 2023. The delegate refused to grant the visa on 29 June 2023.

2. 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 requires the visa applicant to satisfy the Minister as to the relationship between the visa applicant and the sponsor.

4. The delegate refused to grant the visa on the basis that the sponsor had failed to provide sufficient documentary evidence to establish that she is the visa applicant’s sister. Consequently, the sponsorship was not approved and the visa application was refused.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

6. Clause 600.232(2) requires that the visa applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 years old and a relative of the visa applicant.

7. The Department’s records indicate the sponsor is an Australian citizen. In assessing whether she is a ‘settled’ Australian citizen, the Tribunal has had regard to regulation 1.03 which defines ‘settled’ as follows: Settled, in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means lawfully resident in Australia for a reasonable period.

8. ‘Lawfully resident’ and ‘a reasonable period’ are not defined in regulation 1.03. The Department’s policy guidelines state that if the sponsor has been lawfully resident in Australia for two years, discounting short trips outside of Australia for up to four months, the assessment of ‘settled’ will be considered met. However if the sponsor has been outside of Australia for more than four months in the two year period immediately preceding the date the visa application was made, they must provide evidence that they are currently settled in Australia.

9. In this case, the sponsor’s movement records indicate that she was born on 8 June 1992 in Pakistan. She first entered Australia in February 2016, on a permanent visa, and became an Australian citizen on 23 February 2023. She was outside of Australia for more than four months in the two year period immediately preceding the date the visa application was made (19 June 2023), but has been in Australia continuously since 16 February 2022 (that is, for the last 2 years and five months). Accordingly, the Tribunal is satisfied that she is at least 18 years of age and is a settled Australian citizen.

10. In assessing whether the review applicant is a relative of the visa applicant, the Tribunal notes that ‘relative’ is defined in regulation 1.03 as follows: Relative, in relation to a person, means:

    (a) in the case of an applicant for a Subclass 200 (Refugee) visa or a protection 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, 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, step-nephew.

11. ‘Close relative’ is defined in regulation 1.03 as follows: 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.

12. In this case, the sponsor claims the visa applicant is her brother. If that is the case the sponsor will be a close relative of the visa applicant for the purposes of regulation 1.03.

13. In the decision record, the delegate noted the sponsor provided her family registration certificate and the applicant’s passport, but these documents are not enough to establish that the applicant is the sponsor’s brother. The Tribunal notes that the Family Registration Certificate submitted, which was issued by the Government of Pakistan National Database and Registration Authority on 5 January 2015, only shows the sponsor, her husband and their daughter.

14. With the review application made on 1 August 2023, the review applicant included a copy of a Family Registration Certificate which was issued by the Government of Pakistan National Database and Registration Authority (NADRA) on 20 July 2023, following an application by the visa applicant. The document certifies that ‘the family comprising the following members is registered in NADRA with the particulars mentioned below as per the information provided’. The certificate includes the details, including a photograph and statement of the nature of the relationship with the applicant, of the visa and review applicant (‘self’ and ‘sister’ respectively), their father and mother, and a third sibling. The review applicant subsequently submitted a copy of the same document countersigned by an officer of the Ministry of Foreign Affairs on 3 August 2023.

15. Considering the new documentary evidence provided, the Tribunal is satisfied that the review applicant (the sponsor) is the visa applicant’s sister. The Tribunal is also satisfied that the sponsor is a settled Australian citizen. Accordingly, the Tribunal is satisfied that the relevant criterion is met and has concluded that the matter should be remitted for reconsideration.

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

    DECISION

17. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

    cl 600.232 of Schedule 2 to the Regulations.

    Paul Windsor
    Member