Huang (Migration)

[2021] AATA 107

Huang (Migration) [2021] AATA 107 (21 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Lixin Huang

VISA APPLICANTS:  Mr Senshu Huang

CASE NUMBER:  1813785

HOME AFFAIRS REFERENCE(S):          OSF2009/068737

MEMBER:David Crawshay

DATE:21 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 103 visa:

·cl.103.227(1) of Schedule 2 to the Regulations.

Statement made on 21 January 2021 at 12:15pm

CATCHWORDS
MIGRATION – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) – health criteria – death of secondary applicant wife, who did not meet the criteria – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 103.227(1)(a), Schedule 4, criterion 4005

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 to refuse to grant the applicants Parent (Migrant) (Class AX) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 10 February 2009. The delegate refused to grant the visas on 1 May 2018.

2. The delegate made the decision on the basis that the visa applicant’s wife and a secondary applicant for the visa, Mrs Ding Yuan Zhang, did not meet public interest criterion 4005 of Schedule 4 of the Migration Regulations 1994 (the Regulations). This meant that the visa applicant was not able to meet cl.103.227(1)(a) relating to a secondary applicant who is an applicant for the visa. There were no other secondary applicants in the visa application.

3. On 21 January 2021, the Tribunal received a notice to withdraw the review application in respect of the secondary applicant as she had recently died. It also received a certificate pf cremation in respect of the secondary applicant which states that she was cremated on
   19 January 2021.

4. In light of the new evidence received, the Tribunal is satisfied that there is now no member of the family unit of the visa applicant who is an applicant for the visa. Because there is not no member of the family unit of the visa applicant who is an applicant for the visa, the visa applicant meets cl.103.227(1).

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

   DECISION

6. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 103 visa:

   ·cl.103.227(1) of Schedule 2 to the Regulations.

   David Crawshay
   Member