Gao (Migration)

This matter concerned an appeal by a visa applicant seeking an Other Family (Migrant) (Class BO) visa, specifically a Subclass 115 (Remaining Relative) visa. The applicant's Australian citizen sister, Hongyan Gao, acted as the sponsor. The core of the dispute revolved around whether the sponsorship requirements for the visa remained in force at the time of the decision, particularly in light of a request for an updated sponsorship form by the Department.

The Tribunal was required to determine if the sponsorship requirements under clause 115.212 and clause 115.222 of the Migration Regulations 1994 were met. Specifically, the Tribunal had to consider whether the sponsorship was in force at the time of the decision, even if the sponsor was not the same as at the time of application, provided they met the relevant criteria. The Tribunal also had to address the Department's finding that a current or updated Form 40 sponsorship form had not been received.

The Tribunal found that the visa applicant was sponsored by a settled Australian relative who met the age and citizenship requirements at the time of application, satisfying clause 115.212. While acknowledging a typographical error in the Department's decision record regarding the subclause number, the Tribunal was satisfied that the initial sponsorship criteria were met. However, the Tribunal noted the Department's record indicating a lack of a current or updated Form 40 sponsorship form when the application was reassessed.

Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration. The remittal was accompanied by a direction that clause 115.222 of Schedule 2 to the Regulations, concerning the sponsorship being in force at the time of decision, was met. The Tribunal's decision was made by Member Margie Bourke.