Croning (Migration)

[2024] AATA 3091

Croning (Migration) [2024] AATA 3091 (24 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Lionel David Croning

VISA APPLICANTS:  Mr Gerard Paul Croning
Mrs Marie Anna Croning
Ms Amanda Judith Croning

CASE NUMBER:  2309604

HOME AFFAIRS REFERENCE(S):          BCC2023/3316138

MEMBER:Paul Windsor

DATE:24 July 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for the first and second named applicants for reconsideration, with the direction that they meet the following criteria for a Subclass 600 visa:

·cl 600.232 of Schedule 2 to the Regulations

The Tribunal finds that it does not have jurisdiction in relation to the third named applicant.

Statement made on 24 July 2024 at 11:38 am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visiting family – new documentary evidence provided – sufficient documentary evidence provided to establish relationship with the visa applicants – sponsorship approved – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, rr 1.03, 1.05, 1.12, Schedule 2, cl 600.232

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 13 June 2023. The delegate refused to grant the visas on 22 June 2023.

2. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.232, which requires the visa applicant to satisfy the Minister as to the relationship between the visa applicant and the sponsor.

4. The delegate refused to grant the visas on the basis that the sponsor had failed to provide sufficient documentary evidence to establish his relationship with the visa applicants. Consequently, the sponsorship was not approved and the visa applications were refused.

   The Tribunal does not have jurisdiction in relation to the third named visa applicant

5. The review applicant claims that the first named visa applicant is his brother and the second named visa applicant is his brother’s wife. He claims that the third named visa applicant, Ms Amanda Judith Croning, is his brother’s daughter. Ms Croning is 29 years of age, having been born on 5 November 1994.

6. On 7 July 2023, an officer of the Tribunal contacted the review applicant by telephone and subsequently by email advising him that the Tribunal is of the view that the application for review of the decision to refuse to grant Ms Croning a Visitor visa cannot be combined with the application for her parents, because of her age and because she does not meet dependency requirements. In order to satisfy the requirements for a ‘child’ (at reg 1.12(2)) she would need to meet the dependency requirement in reg 1.05A(1)(b). This requires that the person be wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; or be incapacitated for work due to the total or partial loss of their bodily or mental functions. As the review applicant’s statutory declaration of 26 May 2023 indicates that Ms Croning is fit, healthy, employed and financially independent, she is not wholly or substantially reliant on either of her parents for financial support, or incapacitated for work due to the loss of her bodily or mental functions.[1]

   [1] See the Tribunal file, including the Case Note of 7 July 2023.

7. The review applicant responded by email on 10 July 2023 requesting that the review application proceed, with the exclusion of Ms Croning.[2]

   [2] See the Tribunal file.

8. Accordingly, the Tribunal finds that it does not have jurisdiction in relation to the third named applicant, Ms Amanda Judith Croning.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the first and second named visa applicants satisfy the requirements of cl 600.232.

10. Clause 600.232(2) requires that the visa applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 years old and a relative of the visa applicant.

11. The Department’s records indicate the sponsor is an Australian citizen. In assessing whether he is a ‘settled’ Australian citizen, the Tribunal has had regard to regulation 1.03 which defines ‘settled’ as follows: Settled, in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means lawfully resident in Australia for a reasonable period.

12. ‘Lawfully resident’ and ‘a reasonable period’ are not defined in regulation 1.03. The Department’s policy guidelines state that if the sponsor has been lawfully resident in Australia for two years, discounting short trips outside of Australia for up to four months, the assessment of ‘settled’ will be considered met. However if the sponsor has been outside of Australia for more than four months in the two year period immediately preceding the date the visa application was made, they must provide evidence that they are currently settled in Australia.

13. In this case, the sponsor’s movement records indicate that he was born on 31 August 1963 in Pakistan. He first entered Australia in September 1991 on a permanent visa and became an Australian citizen on 15 October 1993. He has not departed Australia since 17 October 2014. Accordingly, the Tribunal is satisfied that he is at least 18 years of age and is a settled Australian citizen.

14. In assessing whether the review applicant is a relative of the visa applicant, the Tribunal notes that ‘relative’ is defined in regulation 1.03 as follows: Relative, in relation to a person, means:

    (a) in the case of an applicant for a Subclass 200 (Refugee) visa or a protection visa:

    (i) a close relative; or

    (ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step grandparent, step-grandchild, step-aunt, step-uncle, step-niece, step-nephew; or

    (iii) a first or second cousin; or

    (b) in any other case:

    (i) a close relative; or

    (ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step grandparent, step-grandchild, step-aunt, step-uncle, step-niece, step-nephew.

15. ‘Close relative’ is defined in regulation 1.03 as follows: Close relative, in relation to a person, means:

    (a)  the spouse or de facto partner of the person; or

    (b)  a child, parent, brother or sister of the person; or

    (c)   a step-child, step-brother or step-sister of the person.

16. In this case, the sponsor claims the visa applicants are his brother and sister-in-law. If that is the case the sponsor will be a close relative of the visa applicants for the purposes of regulation 1.03.

17. In the decision record, the delegate noted the nominated sponsor, Lionel David Croning, provided his Certificate of Baptism, as did visa applicant Gerard Paul Croning, while visa applicant Marie Anna Croning provided her Marriage Certificate. The delegate commented that the relationship documents are required to be government issued in order for the sponsorship to be approved, and found the documents provided were not sufficient to establish the claimed relationship.

18. With the review application made on 30 June 2023, the review applicant provided copies of the following additional documents:[3]

    ·Birth Registration Certificate issued by the Government of Sindh Pakistan for Lionel David Croning, indicating he was born on 31 August 1963 in Rawalpindi Pakistan. His father is named as Edgar S Croning and his mother as Lois Philomena Croning.

    ·Certificate of Domicile dated 10 October 1979, issued under the Pakistan Citizenship Act 1951, for Lionel David Croning, son of Edgar S Croning, indicating he had been domiciled in Karachi Pakistan since birth.

    ·A Family Registration Certificate issued by the Government of Pakistan National Database and Registration Authority on 9 April 2019, certifying the composition of the family of Gerard Paul Croning. This indicates that he is the husband of Marie Anna Croning and father of Amanda Judith Croning. It also indicates that his father is Edgar Sinclair Croning and his mother is Lois.

    ·The Pakistan National Identity Card of Gerard Paul Croning, which indicates he is the son of Edgar S Croning.

    ·The biodata page of the Pakistan passport of Gerard Paul Croning, which indicates he is the son of Edgar Sinclair Croning.

    [3] See the Tribunal file.

19. Considering the new documentary evidence provided, the Tribunal is satisfied that the review applicant, Lionel David Croning (the sponsor) is the brother of Gerard Paul Croning and brother-in-law of Marie Anna Croning. The Tribunal is also satisfied that the sponsor is a settled Australian citizen. Accordingly, the Tribunal is satisfied that the relevant criterion is met and has concluded that the matter should be remitted for reconsideration.

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

    DECISION

21. The Tribunal remits the applications for the first and second named applicants for reconsideration, with the direction that they meet the following criteria for a Subclass 600 visa:

    cl 600.232 of Schedule 2 to the Regulations.

    The Tribunal finds that it does not have jurisdiction in relation to the third named applicant.

    Paul Windsor
    Member