Chen (Migration)

[2024] AATA 27

Chen (Migration) [2024] AATA 27 (4 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Jinying Chen

VISA APPLICANT:  Mr Guanggui Lin

REPRESENTATIVE:  Mr Pei Ling Zheng (MARN: 0323862)

CASE NUMBER:  2313937

HOME AFFAIRS REFERENCE(S):          OSF2011/021733

MEMBER:Brendan Darcy

DATE:4 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 115 visa:

·cl 115.222 of Schedule 2 to the Regulations

Statement made on 04 January 2024 at 9:18am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – evidence for the sponsorship – Assurance of Support letter and other details provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 115.212, 115.222

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 to refuse to grant the applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 19 April 2011. The delegate refused to grant the visa on 7 September 2023.

2. The delegate made the decision on the basis that evidence for the sponsorship was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations). Namely, cl 115.222 was not met.

3. 115.222 states:

   A sponsorship of the kind mentioned in clause 115.212, approved by the Minister, is in force, whether or not the sponsor was the sponsor at the time of application.

4. Clause 115.212 states that at the time of decision, the applicant is considered to be sponsored: (a) if the Australian relative has turned 18 and is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen — by the Australian relative; or (b) by the spouse or de facto partner of the Australian relative if: (i) the spouse or de facto partner cohabits with the relative; and (ii) the spouse or de facto partner is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and (iii) the spouse or de facto partner has turned 18.

5. In this matter, the visa applicant was being sponsored by the review applicant who claims to be the visa applicant’s mother.

6. The Tribunal notes that the Department requested further information about the sponsorship meeting cl 115.222 on 15 March 2023 and 9 August 2023, the additional information was sent to the applicant via their nominated email address. The request included but was not limited to the following:

   · Form 40 – Sponsorship for migration to Australia

   · Form 54 – Family Composition

   · Form 1022 – Change of Circumstances

   · Assurance of Support

   · Health Examinations

7. However, no responses were received.

8. The Tribunal notes in the delegate’s decision record dated 7 September 2023 it states:

   As of today’s date the applicant has failed to provide a current signed Form 40 (Sponsorship for migration to Australia). With no Form 40 provided, I am not satisfied that the applicant has sufficiently demonstrated that they have a current sponsorship in place. Consequently, I find that the applicant does not meet clause 115.222 at time of decision.

9. The review applicant validly applied to have the delegate’s refusal decision on 7 September 2023.

10. On 13 November 2023, the Tribunal received evidence of an Assurance of Support letter from Centrelink, a medical and x-ray examination, an updated Form 80, an updated Form 45, a valid certificate from the Australian Federal Police, a statutory declaration about the applicant’s current circumstances and a completed and updated Form 40.

11. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

12. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

    DECISION

13. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 115 visa:

    ·cl 115.222 of Schedule 2 to the Regulations

    Brendan Darcy
    Member