Kachhia (Migration)

[2017] AATA 54

Kachhia (Migration) [2017] AATA 54 (4 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Vijaykumar Rameshchandra Kachhia

VISA APPLICANTS:  Mrs Ruchi Vrajeshkumar Mistry
Mr Vrajeshkumar Vikeshbhai Mistry
Mr Avdhoot Vrajeshkumar Mistry

CASE NUMBER:  1513564

DIBP REFERENCE(S):  BCC2015/1482534

MEMBER:Karen Synon

DATE:4 January 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration with a direction that the first named visa applicant meets the following criterion for a subclass 489 visa

·    cl.489.225(3) of Schedule 2 to the Regulations.

Statement made on 04 January 2017 at 12:35pm

CATCHWORDS

Migration – Skilled Regional Sponsored (Provisional) visa – Subclass 489 – Visa applicants’ relationship to the sponsor – Designated area – Family identity documents

LEGISLATION

Migration Act 1958, s 65, 360(2)(a)
Migration Regulation 1994, Schedule 2, cl 489.225(3), IMMI12/021

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 1 October 2015 to refuse to grant the visa applicant a Skilled Regional Sponsored (Provisional) Subclass 489 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 23 May 2015.  The delegate refused to grant the visa on the basis that she was not satisfied, on the evidence provided, that the primary visa applicant was related to the sponsor.

3. The sponsor, Mr Vijaykumar Rameshchandra Kachhia (the review applicant) applied for review of the primary decision on 5 October 2015 and provided a copy of the department’s decision.

4. The review applicant was represented in relation to the review by his registered migration agent.

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 section 360(2)(a) of the Act.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets cl.489.225(3)(d).

8. Relevantly, cl.489.225(3) provides that the Minister has accepted the sponsorship of the applicant by a person in the following circumstances:

   (a)      the person has turned 18; and

   (b)      the person is an Australian citizen, Australian permanent resident or eligible New Zealand citizen;

   (c)      the person is usually resident in a designated area of Australia;

   (d)      the person is related to the applicant, or the applicant’s spouse or de facto partner (if the applicant’s spouse or de facto partner is an applicant for a Subclass 489 visa), as:

   (i)      a parent; or

   (ii)      a child or step-child; or

   (iii)      a brother, sister, adoptive brother, adoptive sister, step-brother or step-sister; or

   (iv)      an aunt, uncle, adoptive aunt, adoptive uncle, step-aunt or step-uncle;

   (v)      a nephew, niece, adoptive nephew, adoptive niece, step-nephew or step-niece; or

   (vi)      a grandparent; or

   (vii)      a first cousin;

   (e)      each member of the family unit of the applicant who is an applicant for a Subclass 489 visa is sponsored by that person.

9. The Tribunal bases its findings on the evidence provided to the Tribunal and, where relevant, evidence provided to the department.

10. Relying on the bio data page of his passport the Tribunal is satisfied that the sponsor, Mr Vijaykumar Rameshchandra Kachhia has turned 18 years.  Therefore cl.489.225(3)(a) is met.

11. Relying on the bio data page of his passport the Tribunal is satisfied that the sponsor, Mr Vijaykumar Rameshchandra Kachhia is an Australian citizen.  His certificate of Australian Citizenship (provided to the department) records he was granted citizenship on 4 April 2012.  Therefore cl.489.225(3)(b) is met.

12. 'Designated area' is defined in r.1.03 to mean an area specified as a designated area by the Minister in an instrument in writing.  The relevant instrument for 'designated area' is IMMI12/021.  The entire State of Victoria is specified to be a designated area.  Documents including: a driver’s licence, PAYG taxation payment summary, utility accounts, bank statements and pay slips all record the sponsor’s residential address as being in Victoria.  Further, the Tribunal has referred to the department’s movement records in relation to the sponsor that document he has departed Australia 5 times for periods of less than 6 weeks since first arriving as the holder of a Skilled Independent Subclass 136 visa on 28 November 2007.  Consequently the Tribunal is satisfied that the sponsor is usually resident in a designated area of Australia.  Therefore cl.489.225(3)(c) is met.

13. The delegate was not satisfied that the primary visa applicant is related to the proposed sponsor Mr Vijaykumar Rameshchandra Kachhia.  In this respect the Tribunal makes the following findings:

14. The primary visa applicant, Ruchi Vrajeshkumar Mistry (also previously known as Ruchi Deepakkumar Thakkar) is married to the second named applicant Vrajeshkumar Vikeshbhai Mistry.  The Tribunal bases this finding on the marriage certificate provided to the department (unfolioed).  Further, based on the birth certificate of Vrajeshkumar Vikeshbhai Mistry (also provided to the department) the second named applicant’s mother’s name is Rekhaben and his father’s name is Vikeshkumar Ishwarbhal Kachhia.  The bio data page of the second named applicant’s passport records his mother’s full name as Rekhaben Vikeshbhai Mistry and his father’s name as Vikeshkumar Ishwarbhal Mistry.  On review a copy of the sponsor’s bio data page of his Indian passport (surrendered on 15 November 2012) has been provided which records his father’s name as Kachhia Rameshchandra Chandulal and his mother’s name as Kachhia Chandrakantaben Rameshchandra.  A copy of Rekhaben Vikeshbhai Mistry’s (the second named applicant’s mother) bio data page of her Indian passport has been provided which records her father’s name as Kachhia Rameshchandra Chandulal and her mother’s name as Kachhia Chandrikaben Rameshchandra.  Notwithstanding the slightly different spellings of the second named applicant’s grandmother’s middle name (as Chandrakantaben and Chandrikaben) the Tribunal is satisfied that the evidence provided does demonstrate that the sponsor is the brother of the primary visa applicant’s husband’s mother.  As the maternal uncle of the spouse of the primary visa applicant, the sponsor is a person related to the applicant’s spouse as an uncle: cl.489.225(3)(d)(iv).  Therefore cl.489.225(d) is met.

15. The sponsor, Mr Vijaykumar Rameshchandra Kachhia has sponsored all members of the family unit of the primary visa applicant who is an applicant for a Subclass 489 visa as documented in his statutory declaration dated 11 April 2015 provided to the department. Therefore cl.489.225(e) is met.

16. The Tribunal is therefore satisfied that the applicant meets cl.489.225(3) in its entirety.

17. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider any remaining criteria for a Subclass 489 visa.

    DECISION

18. The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the first named visa applicant meets the following criterion for a subclass 489 visa:

    ·cl.489.225(3) of Schedule 2 to the Regulations.

    Karen Synon
    Member