Chan (Migration)

[2025] ARTA 434

CHAN (MIGRATION) [2025] ARTA 434 (20 FEBRUARY 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Kok Yoong Chan

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2202031

Tribunal:Kira Raif

Place:Sydney

Date:  20 February 2025

Decision:The Tribunal sets aside the decision under review and remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·  cl 836.213 of Schedule 2 to the Regulations

Statement made on 20 February 2025 at 10:44am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – family relationship with the sponsor – birth certificates – DNA testing – decision under review remitted     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 836.213; r 1.03

STATEMENT OF 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 10 February 2022 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Malaysia, born in April 1982. He applied for the visa on 12 July 2019. The delegate refused to grant the visa on the basis that cl 836.213 was not met because the delegate was not satisfied the sponsor was a relative of the applicant. The applicant seeks review of the delegate’s decision.

3. The applicant was represented in relation to the review. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   RELEVANT LAW

4. At the time the application was made, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa which are set out in Part 836 of Schedule 2 to the Regulations.

5. Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

   Are the sponsorship requirements met?

6. When making the application, the applicant claimed that the sponsor is his aunt. To evidence the claimed relationship, the applicant provided with the application birth certificates for himself and the sponsor and on the basis of that evidence, the delegate was not satisfied the sponsor was a relative of the applicant.

7. The applicant provided additional evidence to the Tribunal. Relevantly, the applicant presented

   -his birth certificate which identifies his mother as Yoke Kiew Koong,

   -his mother’s birth certificate, identifying her parents as Chon Koong and Pum Low,

   -the sponsor’s birth certificate identifying her parents as Choon Koong and Pum Low,

   -results of DNA testing between Yoke Kiew Koong and Yoke Meng Koong. These show a 99.99% chance of a sibling relationship.

8. Having regard to the results of the DNA test and birth records, the Tribunal is satisfied that the applicant’s mother Yoke Kiew Koong and the sponsor Yoke Meng Koong are full siblings. Further, having regard to the applicant’s birth certificate, the Tribunal is satisfied the applicant is the child of Yoke Kiew Koong. As such, the Tribunal is satisfied the sponsor is the aunt of the applicant and a ‘relative’ within the meaning of r. 1.03.

9. The primary decision record confirms that the sponsor is an Australian citizen. The Tribunal is satisfied she is usually resident in Australia. The Tribunal finds that at the time of application, the applicant was sponsored by an Australian relative who had turned 18 and was a settled Australian citizen usually resident in Australia. The Tribunal finds that the applicant meets cl. 836.213.

10. The applicant provided to the Tribunal a number of medical reports relating to the sponsor. As the delegate limited their consideration to the issue of relationship between the applicant and sponsor and has not considered other aspects of the definition of the term ‘carer’, the Tribunal has not assessed other requirements.

    Conclusion

11. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

    DECISION

12. The Tribunal sets aside the decision under review and remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

    ·cl 836.213 of Schedule 2 to the Regulations

    Date(s) of hearing  n/a

    Representative for the Applicant:           Ms Yifan Gao (MARN: 1684639)