Chao (Migration)

[2017] AATA 261

Chao (Migration) [2017] AATA 261 (16 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Jiaming (Jasmine) Chao
Ms Xuan Chao

CASE NUMBER:  1515995

DIBP REFERENCE(S):  BCC2015/1746748

MEMBER:Danica Buljan

DATE:16 February 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Distinguished Talent (Residence) (Class BX) visas to the Department of Immigration and Border Protection for reconsideration, with the following directions:

•The first-named applicant meets clause 858.212 of Schedule 2 of the Regulations for a Subclass 858 (Distinguished Talent) visa; and

•The second-named applicant meets clause 858.321 of Schedule 2 of the Regulations for a Subclass 858 (Distinguished Talent) visa.

Statement made on 16 February 2017 at 3:44pm

CATCHWORDS

Migration – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 – Age criteria – Exceptional benefit to Australian community – Hearing not required – Second application granted – Secondary applicant member of family unit

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A

Migration Act 1958, ss 65, 338(2), 347, 353, 360(2)(a)

Migration Regulations 1994, Schedule 2, r 1.03, r 1.12, cl 858.212, cl 858.321

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 9 November 2015 to refuse to grant the applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas under section 65 of the Migration Act 1958 (‘the Act’).

2. The first-named applicant (‘the applicant’) applied for the visa on 18 June 2015. The second-named applicant, the applicant’s mother, was included in the application as a secondary visa applicant.

3. The delegate refused to grant the visas on the basis that the applicant did not meet the requirements of clause 858.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). In particular, as the applicant had not turned 18 when she lodged her visa application, the delegate was not satisfied that the grant of the subclass 858 visa to her would be of “exceptional benefit to the Australian community” for the purposes of paragraph 858.212(2)(f).

4. As a result, the delegate also found that the second-named applicant was not a member of family unit of a person who had satisfied the criteria for a subclass 858 visa and, therefore, she did not meet the requirements of clause 858.321.

5. The applicants applied to the Tribunal on 23 November 2015 for review of the delegate’s decision; a copy of the primary decision record was included with the application for review.[1]

   [1]     AAT case file 1515995 (T1), f.1-26

6. The Tribunal finds that the delegate’s decision is a Part 5-reviewable decision under subsection 338(2), and that the applicants have made a valid application for review under section 347 of the Act.

7. The matter was constituted to the Presiding Member on 8 February 2017. The Tribunal has before it the departmental file[2] relating to the applicants. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[3]

   [2]     D1 - Departmental file CLF2015/1746748, folio numbered 1-236

   [3]     T1 - AAT case file 1515995

8. The applicants were represented in relation to the review by their registered migration agent.

9. In accordance with subsection 360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicants’ favour on the basis of the material before it. It was therefore unnecessary to invite the parties to appear before the Tribunal to give evidence in relation to the decision under review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of paragraph 858.212(2)(f) and whether the second-named applicant meets the requirements of clause 858.321.

12. Departmental records indicate that the applicant made a second application for a Distinguished Talent (Residence) (Class BX) Subclass 858 visa on 25 January 2016. As a result of that application, the applicant was granted a Distinguished Talent (Residence) (Class BX) Subclass 858 visa on 18 October 2016.[4]

    [4]     T1, f.48-49

13. The Tribunal observes that, apart from the inclusion of additional public interest criterion 4020, which is directed at the provision of bogus documents and/or false or misleading information, there has been very little change to the criteria for the grant of a subclass 858 visa between the two dates when the applicant lodged her first and second visa applications on 18 June 2015 and 25 January 2016 respectively.

14. Accordingly, the evidence before the Tribunal is that the applicant is now the holder of a subclass 858 visa, granted to her on the basis that she met all the relevant criteria for a subclass 858 visa as set out in Schedule 2 of the Regulations.

15. The Tribunal notes that it has an obligation under section 353 of the Act to undertake the review according to substantial justice and the merits of the case. In addition, under section 2A of the Administrative Appeals Tribunal Act 1975[5] (‘the AAT Act’), in carrying out its functions the Tribunal must pursue the objective of providing a mechanism of review that, amongst other things, is proportionate to the importance and complexity of the matter before it.

    [5]     No.91, 1975, Compilation No.44, 30 November 2016

16. In this case, the issue relating to whether the applicant meets the requirements of paragraph 858.212(2)(f) and clause 858.212 was resolved by the Department in the applicant’s favour on 18 October 2016 when it granted her a subclass 858 visa. As a result, and given the evidence before it, the Tribunal is satisfied that the applicant meets the requirements of clause 858.212 at the time of its decision.

17. Therefore, the remaining issue for determination is whether the second-named applicant meets the requirements of clause 858.321. Subclauses 858.321(1) and (2) are relevant for this purpose and they provide:

    858.321

    (1)The applicant meets the requirements of subclause (2), (3) or (4).

    (2)The applicant meets the requirement of this subclause if the applicant is a member of the family unit of a person ("the non-dependent holder") who, having satisfied the primary criteria, is the holder of a Subclass 858 visa.

    [Tribunal emphasis]

18. Subsection 5(1) of the Act provides “member of the family unit” has the meaning given by the Regulations. Regulation 1.03 provides that this concept has the meaning set out in regulation 1.12. Subregulation 1.12(7) is relevant for the purposes of this review application and it states:

    1.12

    (1)For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

    …

    (7)In addition to subregulation (1), a person is a member of the family unit of an applicant for a Distinguished Talent (Residence) (Class BX) visa who has not turned 18 at the time of application if:          

    (a)a parent of the applicant has made a combined application with the applicant for the Distinguished Talent (Residence) (Class BX) visa; and

    (b)the person is:

    (i)    that parent; or

    …

    (c)no person is being treated as a member of the family unit of the applicant, in relation to the applicant’s application for the Distinguished Talent (Residence) (Class BX) visa, in accordance with subregulation (1); and

    (d)no other parent of the applicant is being treated as a member of the family unit of the applicant in accordance with this subregulation.

    [Tribunal emphasis]

19. According to the applicant’s birth certificate[6], Chinese passport[7], household registration[8] and Chinese citizen identity card[9], she was born in 1997. As a result, given the date of birth set out in these personal documents, the Tribunal finds that the applicant had not turned 18 at the time of application on 18 June 2015, and that this aspect of subregulation 1.12(7) is met.  

    [6]     D1, f.106

    [7]     D1, f.75

    [8]     D1, f.90-91

    [9]     D1, f.78

20. In addition, the Tribunal notes that the applicant included the second-named applicant in Part F of her visa application as a dependent family member.[10] As a result, the Tribunal finds that the second-named applicant made a combined application with the applicant for a Distinguished Talent (Residence) (Class BX) Subclass 858 visa when the visa application was lodged on 18 June 2015. Therefore, the Tribunal finds that the requirements of paragraph 1.12(7)(a) have been met.

    [10]    D1, f.14

21. In relation to paragraph 1.12(7)(b), the applicant submitted her translated birth certificate[11], which identifies a person with the same name used by the second-named applicant as her mother. The Tribunal also notes that the citizenship identity number cited in the applicant’s birth certificate[12] for her mother, corresponds directly to the identity number set out in the second-named applicant’s Chinese citizen identity card[13] and her household registration[14]. As a consequence, the Tribunal finds that the second-named applicant is the applicant’s mother and her parent for the purposes of paragraph 1.12(7)(b).

    [11]    D1, f.106

    [12]    D1, f.106

    [13]    D1, f.79

    [14]    D1, f.92

22. As regards paragraph 1.12(7)(c), the applicant’s visa application was lodged only in respect of herself and the second-named applicant. As a result, there is little in the evidence before the Tribunal to indicate that any other person is being treated as a member of the family unit of the applicant, in relation to her application for the subclass 858 visa, in accordance with subregulation 1.12(1). Accordingly, the Tribunal finds that the requirements of paragraph 1.12(7)(c) have been met.

23. Paragraph 1.12(7)(d) requires that no other parent of the applicant is being treated as a member of her family unit under subregulation 1.12(7). As noted previously, the applicant only included the second-named applicant in her subclass 858 visa application. She did not include her father, or any other person, as her parent. In addition, the applicant stated in her visa application form that the second-named applicant had never been married or in a de facto relationship.[15] This claim is confirmed by the second-named applicant’s household registration, which gives her marital status as “single”.[16]

    [15]    D1, f.14

    [16]    D1, f.92

24. Further, there is little in the other evidence before the Tribunal to suggest that the applicant has a parent, or that the second-named applicant has a spouse or de facto partner who might claim to be the applicant’s parent, who is also seeking to be treated as a member of the applicant’s family unit under subregulation 1.12(7). As a result, the Tribunal is satisfied that the requirements of paragraph 1.12(7)(d) have been met.

25. Accordingly, given its findings in respect of paragraphs 1.12(7)(a), (b), (c) and (d), the Tribunal is satisfied that the second-named applicant is a member of the applicant’s family unit as defined in subregulation 1.12(7) and regulation 1.12. 

26. Given this finding and the fact that the applicant was granted a subclass 858 visa on 18 October 2016, the Tribunal finds that the second-named applicant is a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 858 visa. As a result, the Tribunal finds that the second-named applicant meets the requirements of subclauses 858.321(1) and (2) and clause 858.321.

    CONCLUSION

27. Given these findings, the appropriate course is to remit the application to the Department to consider any outstanding criteria.

    DECISION

28. The Tribunal remits the application for Distinguished Talent (Residence) (Class BX) visas to the Department of Immigration and Border Protection for reconsideration, with the following directions:

    ·The first-named applicant meets clause 858.212 of Schedule 2 of the Regulations for a Subclass 858 (Distinguished Talent) visa; and

    ·The second-named applicant meets clause 858.321 of Schedule 2 of the Regulations for a Subclass 858 (Distinguished Talent) visa.

    Danica Buljan
    Member