Asim (Migration)

This matter concerned an appeal by a visa applicant against a decision by a delegate to refuse a Visitor (Class FA) visa, subclass 600 (Sponsored Family stream). The refusal was based on the delegate's finding that the visa applicant's sponsor, an Australian citizen, had failed to provide sufficient documentary evidence to establish that she was the visa applicant's sister. Consequently, the sponsorship was not approved, leading to the refusal of the visa application.

The primary legal issue before the Tribunal was whether the visa applicant satisfied the requirements of cl 600.232 of Schedule 2 to the Migration Regulations 1994. This clause mandates that the visa applicant must be 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. The Tribunal was required to determine if the sponsor met the criteria of being a "settled" Australian citizen and a "relative" of the visa applicant, as defined by the Regulations.

The Tribunal considered regulation 1.03, which defines "settled" as lawfully resident in Australia for a reasonable period. Applying departmental policy, which generally considers two years of lawful residence as meeting this criterion, the Tribunal found the sponsor to be "settled." The sponsor, born in 1992, had entered Australia in 2016 on a permanent visa and became an Australian citizen in 2023. Despite being outside Australia for more than four months in the two years preceding the visa application, she had been continuously resident since February 2022. Furthermore, the Tribunal considered the definition of "relative" in regulation 1.03, which includes a "sister" under the definition of "close relative." Based on new documentary evidence provided, the Tribunal was satisfied that the sponsor was indeed the visa applicant's sister.

As the Tribunal was able to find in favour of the review applicant on the basis of the material before it, a hearing was not considered necessary. The Tribunal remitted the application for reconsideration with a direction that the applicant meets the criteria for a Subclass 600 visa under cl 600.232 of Schedule 2 to the Regulations.