Chen (Migration)

[2022] AATA 465

Chen (Migration) [2022] AATA 465 (21 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Jiajian Godfrey Chen

REPRESENTATIVE:  Mr Daniel Estrin (MARN: 1276986)

CASE NUMBER:  2008517

HOME AFFAIRS REFERENCE(S):          CLF2018/361926

MEMBER:Steven Griffiths

DATE:21 February 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl 802.215(b) of Schedule 2 to the Regulations; and

·cl 802.226 of Schedule 2 to the Regulations.

Statement made on 21 February 2022 at 12:03pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – sponsor did not hold Australian Citizenship at visa application – citizenship revoked – sponsor’s citizenship re-approved upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.215, 802.216, 802.226

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 on 1 May 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Master Jiajian Godfrey Chen, applied for the visa on 26 November 2018 on the basis of her relationship with the sponsor, his mother, Ms. Gloria Ao Chen. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl 802.216, 802.226A), the criteria to be met in this case include cl 802.215 and cl 802.226.

4. The delegate refused to grant the visa on the basis that cl 802.226 was not met because the sponsor was determined to not hold Australian Citizenship at the time of the decision.

5. The parties were assisted by their legal practitioner, Mr. Daniel Estrin, of Estrin Saul, Migration Specialists.

6. The parties were invited to appear before the Tribunal on 18 January 2022, but following a detailed review of submissions and associated information, and consideration of the issues of the case linked to a hearing held recently involving two cousins of the applicant, the Tribunal determined that a decision could be made on the information provided without the requirement to hold a hearing. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file and the Tribunal file including information provided by the applicants prior to what had been an intended hearing. 

   BACKGOUND OF THE EVIDENCE

9. Applicant Miss Chen was born in Papua New Guinea in 2006, has a sister and brother, born 2005 & 2008, who are the subject of identical visa applications, with their mother being the sponsor. The children were granted Visitor 600 Visas on 22/6/17 and to cease 17/10/17, arriving on 17/7/17. They were then granted Student 500 Visas on 8/1/18 and have been on a WC-030 Bridging Visa from 12/10/20.

10. Sponsor Ms. Chen was born in Papua New Guinea in 1984 and is the mother of the visa applicant and two siblings. She is married, with her husband living in Papua New Guinea. She was granted a Visitor 600 Visa on 21/9/16 and to cease 17/10/17, arriving on 14/10/16.  He was granted a Student Guardian 590 Visa on 8/1/18 and to cease 30/6/20 and has been on a series of WC-030 Bridging Visas from 7/7/20. She became an Australian citizen by descent on 16/11/18, through her mother, and she was advised on 29/1/20 that her citizenship had been reviewed as her mother did not have permanent residency and had lost her Australian citizenship in 19/9/75.

    INFORMATION TO THE TRIBUNAL

11. Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-

    Review application, 20/5/200

    Fee Reduction Request (granted 25/5/20)

    Sponsor Movement Record, 24/11/21

    Applicant Movement Record, 24/11/21

    Hearing invitation, 25/11/21

    Migration Agent submission, 6/1/22

    Details of grandmother of applicant Australian citizenship resolution and certificate dated 9/11/21

    Sponsor application for evidence of Australian citizenship, 9/12/21

    Norris / Chen family tree

    Hearing Response, 7/1/22

    Email of 16/2/22 from representative providing a Department of Home Affairs letter confirming the reversal of the void decision on Descent extraction of the sponsor. 

    Department of Home Affairs letter of 18/2/22 to the sponsor confirming his application for Evidence of Australian Citizenship was approved. 

    ISSUE

12. The issue in the present case is if the applicant is sponsored by a valid sponsor.

    Sponsorship

13. As the visa application is not supported by a letter of support from a State or Territory government welfare authority, the applicant does not meet cl 802.215(a) and must meet the requirements in cl 802.215(b). Clause 802.215(b) requires that, at the time of application, the applicant is sponsored by a person who has turned 18, is an Australian citizen, permanent visa holder or an eligible New Zealand citizen. The sponsor must be either the person for whom the applicant is their dependent child, or a cohabiting spouse or de facto partner of that person. At the time of decision, this sponsorship must have been approved and still be in force: cl 802.226.

14. The Tribunal notes the visa application was lodged on 26/11/18, with the mother of the visa applicant identified as the sponsor.

15. The Tribunal notes the finding of the Delegate in the refusal decision of 1/5/20 that the sponsor acquired Australian citizenship by descent on 6/11/18, however on 29/1/20 this citizenship was deemed invalid and as result the sponsor had her Australian citizenship annotated on 29/1/20.

16. The Tribunal is aware, through consideration of this case, plus the siblings and cousins of the review applicant, that the sponsor had been provided with Australian citizenship by descent through her mother, with a decision made that the mother, being the grandmother of the review applicant, had lost her Australian citizenship backdated to 19/7/75, and as result the sponsor had her Australian citizenship annotated on 29/1/20.

17. The Tribunal notes from this refusal decision of 1/5/20 this annotation of the Australian citizenship of the sponsor on 29/1/20 resulted in the sponsor not being an Australian citizen, nor was she a permanent visa holder or an eligible New Zealand citizen, the sponsor being in Australia as the holder of a Student Guardian (TU 590) Visa.

18. The Tribunal notes that the applicant was advised on 25/3/20 that the opportunity was provided to comment on the status of the sponsor, with no response received.

19. The Tribunal notes the visa application was refused on 1/5/20 as the applicant was not able to demonstrate that the sponsor was an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, and thus cl 802.215 was not met.

20. The Tribunal notes that the submission of the legal representative of the applicant, dated 6/1/22 included reference to and a copy of the decision by Senior Member Millar of the General Division of the Administrative Appeals Tribunal, dated 17/5/21, on file 2020/2169, which was a review of a decision made by application of the sister of the sponsor, on if her mother, being also the mother of the sponsor, was an Australian citizen and thus the impact on her application for Australian citizenship by descent.

21. The Tribunal notes the finding by Senior Member Millar date 17/5/21 in the review of file 2020/2169 being that the mother of the applicant (and also the mother of the sponsor in this review) is an Australian citizen.

22. The Tribunal accepts the documented evidence of the mother of the sponsor being provided with a Certificate of Australian Citizenship, dated 9/11/21, confirming she acquired Australian citizenship on 3 August 1960, this being the date of her birth.

23. The Tribunal accepts the documented evidence that the sponsor lodged with the Department of Home Affairs on 9/12/21 an application for evidence of Australian citizenship.

24. The Tribunal notes the consideration of an issue for cousins of the review applicant, at a joint  hearing for a child visa, that a final response has not been received by those parties from the Department of Home Affairs.

25. The Tribunal notes the sponsor at the joint hearing of the cousins of the review applicant confirmed he would approach the Department of Home Affairs following the hearing seeking a determination of the application and confirmation that he was an Australian citizen by descent, as he held from 16/11/18 to 29/1/20, with this commitment extending to the pursuit of identical confirmation of Australian citizenship by descent for the siblings of the sponsor as this impacted on visa applications for relatives.

26. The Tribunal notes that at the time of the visa application the sponsor was the holder of Australian citizenship by descent and legally able to sponsor her children to live in Australia.

27. The Tribunal resolved, during the hearing, to provide the parties until close of business 23/2/22 for documented evidence to be provided to the Tribunal on the status of the citizenship of the sponsor.

28. The Tribunal accepts the documented evidence provided by the sponsor on 16/2/22 of a letter from the Department of Home Affairs confirming it will soon finalise the application of the sponsor for an Evidence of Australian Citizenship document.

29. The Tribunal accepts the documented evidence provided by the sponsor on 18/2/22 of a letter from the Department of Home Affairs confirming the application of the sponsor for Evidence of Australian Citizenship was approved on 18/2/22. 

30. The Tribunal accepts the applicant was sponsored by an Australian citizen at the time of the lodgement of the visa application.

31. The Tribunal determines the sponsor is an Australian citizen at the time of this decision.

32. Accordingly, the requirements in cl 802.215 and cl 802.226 are met.

33. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

34. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl 802.215(b) of Schedule 2 to the Regulations; and

    ·cl 802.226 of Schedule 2 to the Regulations.

    Steven Griffiths
    Member