Chou (Migration)

[2021] AATA 2741

Chou (Migration) [2021] AATA 2741 (28 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Rih-Ming Chou

CASE NUMBER:  1831748

HOME AFFAIRS REFERENCE(S):          CLF2017/121069

MEMBER:  Joseph Francis

DATE:28 July 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 28 July 2021 at 1:28pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – valid sponsorship – sponsored by eligible person, including permanent visa holder – claimed sponsor a temporary visa holder at times of application and delegate’s decision – granted permanent residence after decision – right to hearing waived – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 802.215, 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 9 October 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 December 2017. 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 (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.

4. The delegate refused to grant the visa on the basis that cl.802.215 was not met because the visa applicant did not have a valid sponsor.

5. The applicant waived their right to a hearing.  The Tribunal therefore proceeded to decide the matter based on the evidence and submissions received.

6. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is weather the visa applicant had a valid sponsorship at the time of the visa application.

   Sponsorship

9. 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.

10. The visa application was lodged on 11 December 2017.

11. A completed form 40CH – ‘Sponsorship for a child to migrate to Australia’ was submitted indicating the sponsor to be Mr Minh Thanh VO.

12. Mr Vo was granted a UF-309 Partner (Provisional) visa on 24 November 2016.

13. It is not disputed that Mr Vo was the holder of this subclass 309 visa on the day the visa application was lodged.

14. The Department wrote to applicant via the registered migration agent on 3 September 2018 providing the applicant the opportunity to comment on the adverse information, being the visa status of the claimed sponsor.

15. At the time of the delegates decision on 9 October 2019 no reply had been received to the invitation to comment.  The delegate therefore refused the visa on the basis that the sponsorship was invalid.

16. The applicant lodged an application for review with the Tribunal on 29 October 2018.

17. The applicant provided a copy of the delegates decision record with the application for review.

18. The applicant, through their registered migration agent, provided a submission to the Tribunal on 29 September 2020, indicating that the claimed sponsor had been granted Permanent Resident status on 18 March 2020 on the basis they now held a subclass 100 visa.

19. The registered migration agent also provided a submission claiming that as the reason for the Departments decision to refuse the visa no longer applies.

20. The Tribunal accepts that the visa status of the claimed sponsor changed on 18 March 2020 when they were granted the subclass 100 visa and permanent resident status.

21. However, cl.802.215 requires the applicant is:

    (b)  sponsored by a person who:

    (i)  has turned 18; and

    (ii)  is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen; and

    (iii)  is:

    (A)  the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph 802.212(1)(a); or

    (B)  the cohabiting spouse or de facto partner of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph 802.212(1)(a).

22. Clause 802.21 specifically requires this criterion to be met at the time of the visa applicantion. 

23. The Tribunal therefore finds the applicant was not sponsored at the time of application by an eligible person.

24. Accordingly, the requirements in cl.802.215 are not met.

25. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

    DECISION

26. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Joseph Francis
    Member