Chou (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, subclass 802, where the applicant sought review of a delegate's decision to refuse the visa. The core of the dispute revolved around the validity of the sponsorship at the time the visa application was lodged and when the delegate made their decision. The applicant claimed the sponsor was a temporary visa holder at these critical junctures, although the sponsor was subsequently granted permanent residency. The review was heard by Joseph Francis, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements for sponsorship under clause 802.215 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the sponsor was an eligible person, defined as an Australian citizen, permanent visa holder, or eligible New Zealand citizen, at the time the visa application was lodged. The Tribunal also considered the requirement that sponsorship must have been approved and remain in force at the time of the decision.

The Tribunal reasoned that clause 802.215(b) mandates that the sponsor must be an Australian citizen, permanent visa holder, or eligible New Zealand citizen at the time of the visa application. While acknowledging that the sponsor was granted permanent residency on 18 March 2020, after the delegate's decision, the Tribunal found this subsequent change in status did not rectify the deficiency at the time of the application. The delegate had notified the applicant of the adverse information regarding the sponsor's visa status and invited comment, but no response was received before the decision to refuse the visa was made.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a Child (Residence) (Class BT) visa, finding that the criteria for the visa grant were not met due to the invalid sponsorship at the relevant time.