Chen (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by Miss Chen, born in Papua New Guinea in 2006. The sponsor was Miss Chen's mother, Ms. Chen. The central dispute revolved around the validity of the sponsorship at the time of the visa application and subsequent decision, particularly in light of a complex issue concerning the sponsor's Australian citizenship.

The primary legal issue before the Tribunal was whether the applicant was sponsored by a valid sponsor as required by the Migration Regulations. Specifically, the Tribunal had to determine if the sponsor, Ms. Chen, met the criteria for sponsorship under clause 802.215(b) of Schedule 2 to the Regulations, which requires the sponsor to be an Australian citizen, permanent visa holder, or eligible New Zealand citizen, and for the sponsorship to be approved and in force under clause 802.226 at the time of decision.

The Tribunal's reasoning focused on the sponsor's Australian citizenship status. Ms. Chen had become an Australian citizen by descent on 16 November 2018. However, on 29 January 2020, she was advised that her citizenship had been reviewed due to her mother's lack of permanent residency, which had led to the revocation of her mother's Australian citizenship in 1975. This revocation retrospectively impacted Ms. Chen's citizenship by descent. Crucially, subsequent to the Department of Home Affairs' decision, further evidence was provided, including a Department of Home Affairs letter dated 18 February 2022 confirming that Ms. Chen's application for Evidence of Australian Citizenship had been approved. This indicated that the void decision regarding her citizenship had been reversed.

Given these developments, the Tribunal found that the applicant met the sponsorship criteria under clauses 802.215(b) and 802.226 of Schedule 2 to the Regulations. Consequently, the Tribunal remitted the application for a Child (Residence) (Class BT) visa for reconsideration by the Minister, with the direction that these specific criteria were met.