Dai (Migration)

[2020] AATA 5068

Dai (Migration) [2020] AATA 5068 (22 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Yu Dai

VISA APPLICANTS:  Ms Di Dai
Miss Linrui Zhong

CASE NUMBER:  1926963

DIBP REFERENCE(S):  OSF2010/072093

MEMBER:Kira Raif

DATE:22 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 22 September 2020 at 1:55pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – an Assurance of Support (AOS) not provided – review applicant seeking work – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 362, 379
Migration Regulations 1994, Schedule 2, cl 115.221

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 Immigration on 6 August 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 18 June 2010. The delegate refused to grant the visas on the basis that cl.115.225 was not met because an Assurance of Support (AOS) has not been provided. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was to be held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant would have been given a fair opportunity to give evidence and present arguments.

4. On 31 August 2020 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 22 September 2020. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

5. On the morning of 22 September 2020, merely half an hour before the hearing was due to commence, the review applicant wrote to the Tribunal stating that she had a sore throat and a runny nose and requesting a hearing postponement. The Tribunal has considered the request but decided not to postpone the hearing as there was no evidence to support the applicant’s request, most obviously in the form of a medical certificate, and the Tribunal was not satisfied on the basis of the applicant’s assertion that she was unable to participate in a telephone hearing, give evidence and present arguments. The Tribunal wrote to the applicant prior to the hearing informing her that the hearing would proceed as scheduled. However, the applicant did not appear before the Tribunal.

6. The Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. The Tribunal is satisfied the applicant was aware of the hearing and also aware that her request to postpone the hearing has not been agreed to. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   Relevant law

7. At the time the application was made, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the visa applicants are seeking to satisfy the criteria for the grant of a Subclass 115 visa which requires the primary visa applicant to be the remaining relative of an Australian relative. The criteria for a Subclass 115 visa are set out in Part 115 of Schedule 2 to the Regulations.

8. Relevantly to this matter, the primary criteria to be met include cl.115.225, which requires that an AOS in relation to the visa applicants has been accepted by the secretary of the Department of Family and Community Services.

   Has an AOS been accepted?

9. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that in April 2019 the delegate wrote to the visa applicant seeking evidence of an accepted AOS. The sponsor replied to the Department indicating that she was seeking work and required an extension of time. She was granted more time to provide the AOS but it was not done at the time of the primary decision in August 2019.

10. In March and May 2020 the Tribunal wrote to the review applicant inviting her to provide evidence of the AOS. The applicant sought more time and in August 2020 informed the Tribunal that she was still looking for work.

11. The Tribunal is mindful that the delegate first requested the AOS application in April 2019. The applicant has been granted more than 15 months to make arrangements to obtain the AOS. While the applicant initially informed the Tribunal that she was in the processing of obtaining the AOS, she presented no evidence that this process has been finalised or that it was still ongoing or that she was taking steps to engage with Centrelink to obtain the AOS.

12. The applicant refers to her desire to find a job but has not provided any indication of when that might happen or if it will happen at all. In the Tribunal’s view, it is under no obligations to wait for an indeterminate period of time to enable the review applicant to obtain the acceptable AOS, particularly in circumstances where the applicant has not presented evidence of being engaged in the process of obtaining it. The Tribunal would have allowed more time to the applicant if there was evidence before it that the applicant was actively taking steps to obtain the AOS. However, at the time of this decision, there is no such satisfactory evidence before the Tribunal.

13. For these reasons, the Tribunal has decided to proceed to the decision on the material before it. There is no evidence that an AOS has been approved. The Tribunal is not satisfied the visa applicants meet cl 115.225. There is no evidence that the visa applicants meet the criteria for the grant of the other visas in Class BO.

    Conclusion

14. For the reasons above, the visa applicant does not meet the criteria for a Subclass 115 visa. In respect of the other visa subclasses there is no material which would permit a finding that the visa applicant meets prescribed criteria for the visa sought.

    DECISION

15. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Kira Raif
    Senior Member