Gao (Migration)

[2023] AATA 325

Gao (Migration) [2023] AATA 325 (19 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hongyan Gao

VISA APPLICANT:  Mr Qian Gao

CASE NUMBER:  2015577

HOME AFFAIRS REFERENCE(S):          OSF2010/072633

MEMBER:Margie Bourke

DATE:19 January 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the following criteria for a Subclass 115 (Remaining Relative) visa are met:

·Cl.115.222 of Schedule 2 to the Regulations.

Statement made on 19 January 2023 at 7:48am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa –115(Remaining Relative visa)– a further completed form 40 sponsorship form provided –sponsorship of the visa applicant by his Australian relative is still in force –decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, r 1.03, Schedule 2, cl 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 on 20 October 2020 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 11 October 2010. At that time, 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 (Cth) (the Regulations). In the present case, the visa applicant is 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. Relevantly to this matter, the primary criteria to be met include cl 115.222.

3. The delegate refused to grant the visa on the basis that cl 115.222 was not met because the delegate was not satisfied the visa applicant met the sponsorship requirements at the time of decision.

4. The Tribunal has considered the information contained in the Department’s decision record dated 20 October 2020, and the information provided to the Tribunal by the review applicant. The Tribunal is satisfied it can make a decision favourable to the visa applicant without proceeding to a hearing based on the information available to it, pursuant to s.360(2)(a) of the Act.

5. The following are the written reasons that the Tribunal has concluded the matter should be remitted back to the Department for reconsideration.

   Consideration of claims and evidence

6. The visa application was made on the basis that the visa applicant is the remaining relative of the review applicant, Hongyan Gao, who is the sister of the visa applicant, and an Australian citizen. For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: reg 1.03. ‘Relative’ is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).

7. In this case Hongyan Gao is the visa applicant’s sister and an Australian citizen, and therefore is an Australian relative for these purposes. 

   Are the sponsorship requirements met?

8. Clause 115.212 requires that at the time of application the visa applicant is sponsored by the ‘settled’ Australian relative, or the spouse or where relevant, the de facto partner, of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, that person must cohabit with the Australian relative and must also be a settled Australian citizen, permanent resident or eligible New Zealand citizen. At the time of this decision the sponsorship must be in force, although the sponsor need not be the same sponsor as at the time of application, provided he or she meets the requirements above: cl 115.222.

9. The terms, ‘settled’, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. ‘Spouse’ is defined in reg 1.15A (for visa applications made before 1 July 2009) and s.5F of the Act (for visa applications made after on or that date). ‘De-facto’ partner is defined in s.5CB of the Act (for visa applications made on or after 1 July 2009).

10. In the Department’s decision record dated 20 October 2020, the delegate found that the visa applicant met the sponsorship requirements at the time of application and satisfied the criteria of cl.115.212. The delegate records that a sponsorship form signed by the sponsor and dated 7 September 2010 had been received by the Department. The Tribunal notes there was a typographical error in the Department’s decision record, and the delegate recorded the subclause as cl.116.212.

11. The Tribunal is also satisfied that the applicant was sponsored by an Australian relative who had turned 18 and is a settled Australian citizen at the time of application, and therefore meets the requirements of cl.115.212.

12. The delegate recorded in the Department’s decision record that a request was made for the visa applicant to provide a form 40 sponsorship form when the application for the visa was being reassessed. The request was dated 12 February 2020. The Department’s decision record noted that it did not receive a current or updated form 40 sponsorship form.

13. In the Department’s decision record it noted a delegate may choose to reassess a sponsorship after the lapse of two years. The delegate recorded that pursuant to policy sponsorship forms are valid for a period of two years. The delegate found the Department had not received a sponsorship form, and therefore could not determine if the sponsorship of the visa applicant remained in force at the time of decision. For this reason the delegate concluded that the visa applicant did not meet the requirements of cl.115.222.

14. The review applicant lodged an application for review of the Department’s decision with the Tribunal on 21 October 2020. The Tribunal also received a completed sponsorship form 40 dated 20 October 2020.

15. The review applicant provided a written submission to the Tribunal in which she outlined that she had missed the request from the Department sent to her via email to provide a second form 40 sponsorship form.

16. The Tribunal has received from the review applicant a further completed form 40 sponsorship form dated 2 January 2023. The review applicant also provided the Tribunal with an attached statement setting out the details of the previous sponsorship of her parents.

17. The Tribunal is satisfied based on the information provided to it, that the sponsorship of the visa applicant by his Australian relative, the review applicant, is still in force.

18. The Tribunal is satisfied that the visa applicant meets the requirements of cl.115.222 at the time of decision.

19. For all the above reasons the Tribunal is satisfied that at the time of application the visa applicant was sponsored in accordance with the regulations and satisfied the requirements of cl.115.212.  

20. The Tribunal is satisfied that the sponsorship is in force, and the visa applicant satisfies the requirements of cl.115.222.

21. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 115 visa.

    decision

22. The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the following criteria for a Subclass 115 (Remaining Relative) visa are met:

    ·cl 115.222 of Schedule 2 to the Regulations.

    Margie Bourke
    Member