CHEN (Migration)

[2017] AATA 244

CHEN (Migration) [2017] AATA 244 (6 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Li He CHEN

VISA APPLICANTS:  Mr Hanchi CHEN
Mrs Shunnu CHEN

CASE NUMBER:  1510763

DIBP REFERENCE(S):  OSF2006/064833

MEMBER:Catherine Wall

DATE OF DECISION:  6 February 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Parent (Migrant) (Class AX) visas.

Statement made on 06 February 2017 at 10:46am

CATCHWORDS
Migration – Parent (Migrant) (Class AX) visa – Subclass 103 – Assurance of Support not provided – Delay in Centrelink processing – Adequate notice given

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 1, Schedule 2, cl 103.226, Item 1124

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 to refuse to grant the visa applicants Parent (Migrant) (Class AX) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant is Mr Hanchhi Chen, a 76 year old citizen of China. The second named visa applicant is his wife, Ms Shunnu Chen, a 72 year old citizen of China. They applied for the visas on 3 July 2006. They are sponsored by their son, Mr Li He Chen, a 48 year old Australian citizen, who is the review applicant in this matter.

3. The delegate refused to grant the visas on 19 June 2015 on the basis that cl.103.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not satisfied because the sponsor failed to provide evidence that an assurance of support had been accepted the Secretary of the Department of Family and Community Services.

4. The review applicant, Mr Chen, appeared before the Tribunal on 1 December 2016 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent, Ms Betty Zhang.

6. For the following reasons the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATIONS AND FINDINGS

7. At the time the visa application was lodged, the Parent (Migrant) (Class AX) visa contained Subclass 103 (Parent): Item 1124 of Schedule 1 to the Regulations.

8. The Parent (Migrant) (Class AX) visa is a permanent visa for parents of settled Australian citizens, Australian permanent residents and eligible New Zealand citizens who satisfy the ‘balance of family’ test.

9. The criteria for a Subclass 103 visa are set out in Part 103 of Schedule 2 to the Regulations. The primary criteria must be satisfied by at least one member of the family unit who is an applicant for the visa. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

10. Clause 103.226 requires that an Assurance of Support (AOS) in relation to the applicant has been accepted by the Secretary of the Department of Family and Community Services.

11. The primary decision records that on 16 October 2013 the Department asked Mr Chen to provide evidence of an AOS. He did not do so.

12. On 7 October 2014 the Department again requested Mr Chen to provide evidence of an AOS.  He did not do so. On 19 June 2015 the delegate refused the visas on the basis that evidence of an AOS had not been provided.

13. On 4 August 2016 the Tribunal wrote to Mr Chen inviting him to provide information in relation to the AOS as required by cl.103.226. Mr Chen’s representative advised the Tribunal on 17 August 2016 that Mr Chen had applied for an AOS and submitted a copy of a Centrelink appointment receipt.

14. On 24 August 2016 Mr Chen’s representative advised the Tribunal that Mr Chen has advised her that the AOS had been accepted and would be provided directly to the Tribunal.

15. On 29 September 2016 the Tribunal phoned Mr Chen’s representative in regard to the requested information. The representative told the Tribunal that Centrelink had contacted Mr Chen and that ‘he had passed and it was all sorted’.

16. On 19 October 2016 the Tribunal asked the Department whether an AOS had been approved. The Department advised the Tribunal on 10 November 2016 that there was no entry in relation to an AOS.

17. On 11 November 2016 the Tribunal invited Mr Chen to attend a hearing scheduled for 1 December 2016.

18. On 24 November 2016 Mr Chen’s representative advised the Tribunal that Mr Chen had lodged his AOS on 17 August 2016, however he was given a wrong application form from Centrelink, therefore he lodged a new application on 17 November 2016. Mr Chen submitted a copy of a statement written by him with a Centrelink stamp dated 17 November 2016, and a copy of part of a page of a different document with a Centrelink stamp dated 26 September 2016.

19. At the hearing Mr Chen said that he did not have evidence that an AOS had been accepted, and he asked the Tribunal to give him time to provide the AOS. The Tribunal asked him why the Tribunal has been advised on 2 occasions that the AOS was accepted. He and his representative said that there was a misunderstanding.

20. The Tribunal invited Mr Chen to provide evidence of an approved AOS by 15 December 2016, and advised him that it was necessary for him to request an extension of time prior to that date if he required additional time.  On 15 December 2016 his representative informed the Tribunal that Mr Chen visited the Centrelink office on 1 December 2016 to check the progress of the AOS, and on 2 December 2016 he received an SMS from Centrelink advising him that the application will not be processed for another 4-6 weeks. He attached text on a page which he submits is a copy of the Centrelink SMS.  The Tribunal does not consider this to be probative evidence that he has lodged an AOS with Centrelink. The representative did not seek an extension of time to submit further evidence.

21. At the time of this decision the Tribunal has not received any further information from Mr Chen.

22. The Tribunal considers that Mr Chen has had more than adequate notice of the requirement for an AOS. He was first asked by the department to provide evidence of the AOS in October 2013. The Tribunal first requested evidence of the AOS on 4 August 2016. The Tribunal is not willing to delay a decision for an indefinite period.  

23. There is no evidence before the Tribunal that an assurance of support in relation to the applicant has been accepted by the Secretary of the Department of Family and Community Services, therefore the Tribunal finds that cl.103.226 is not met.

    Secondary applicant

24. The second named visa applicant applied on the basis of being a member of the family unit of a person who satisfies the primary criteria. As the Tribunal finds that the first named visa applicant does not satisfy the primary criteria for the visa, it follows that the second named visa applicant cannot be granted the visa.

    CONCLUSIONS

25. For the reasons given above the Tribunal finds the visa applicants do not satisfy the requirements of cl.103.226.

    DECISION

26. The Tribunal affirms the decisions not to grant the visa applicants Parent (Migrant) (Class AX) visas.

    Catherine Wall
    Member