Kienina (Migration)

[2018] AATA 1585

Kienina (Migration) [2018] AATA 1585 (10 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Olga Kienina
Master Pavlo Yakhnitsia

CASE NUMBER:  1711874

DIBP REFERENCE(S):  OSF2011/052810

MEMBER:Adrienne Millbank

DATE:10 April 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to refuse the parties a Contributing Parent (subclass 143) visa.

Statement made on 10 April 2018 at 4:18pm

CATCHWORDS

Migration – Contributory Parent (Class CA) visa – Subclass 143 (Migrant) visa – No assurance of support (AoS) – Sponsor not meeting eligibility requirements for an AoS

LEGISLATION

Migration Act 1958, s. 65

Migration Regulations 1994, Schedule 2, cl 143.228, 143.327, 143.321

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 18 May 2017 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 4 November 2013. The delegate refused to grant the visa on the basis that the primary and the secondary applicant did not have an Assurance of Support. The Delegate determined that the primary applicant did not meet cl.143.228 and the secondary applicant did not meet cl.143.327. In addition, as the Delegate found the primary applicant did not satisfy primary criteria for the grant of a visa, the Delegate found the secondary applicant also did not satisfy cl.143.321 for the grant of the visa.

3. The applicants appeared before the Tribunal on 3 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the primary applicant’s daughter. The hearing was conducted with the assistance of an interpreter in the Russian language.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicants were born in Ukraine in 1963 and 2003.

6. They were granted a Contributory Parent – Temporary (subclass 173) visa on 8 November 2012, and first arrived in Australia on 14 June 2013.

7. On 13 August 2015 and 5 April 2017 the Department wrote to the applicants requesting evidence of an Assurance of Support, or evidence demonstrating that an Assurance of Support had been lodged.

8. The applicants’ sponsor and intended assurer, the primary applicant’s son-in-law, was found not to meet eligibility requirements for an Assurance of Support.

9. On 2 May 2017 the primary applicant wrote to the Department advising that she and her son wished to remain in Australia, despite being unable to satisfy the Assurance of Support requirement.

10. The issue in the present case is whether the applicants meet the criteria for the grant of the visa.

11. The applicants’ sponsor, the primary applicant’s son-in-law, provided to the Tribunal a statutory declaration, signed 29 May 2017, in which he declared:

    • The parties were never advised or made aware, at the time the applicants applied to come to Australia, that a 10-year assurance of support was required.
    • He was unable to be the assurer because he did not meet the financial requirements, being solely employed and supporting a family of five children and a dependent wife.
    • The primary applicant is working fulltime and is totally independent; her son, the secondary applicant, is doing well at school; they are both attending English lessons and want to remain in the country.
    • The family will provide the applicants with full support.
    • The primary applicant initially moved from Crimea, which is now annexed by Russia. Currently holding a Ukrainian passport, she is unaware where she will be allowed to go. She has family and a home in Australia and has no home or family to return to.
    • Having used all her savings on previous visa applications, the primary applicant has no means in order to start over.

12. The Tribunal advised the parties that the Assurance of Support is a legal requirement of the Contributory Parent (subclass 143) visa and that there is no waiver of this requirement. All persons being granted a Contributory Parent (subclass 143) visa must have an approved Assurance of Support; if they do not have an approved Assurance of Support they do not meet a stipulated requirement for the visa.

13. The primary applicant stated that she understood and respected the law. She stated that she has asked other family members, and members of her local Russian and Church community, but has not been able to find another assurer. She stated that the people she approached were wary of the 10-year obligation the Assurance of Support entailed, in light of the age of her son, and the impossibility of predicting the future.

14. The primary applicant further advised that she has sought the assistance of three migration agents, and been advised that that her best option was to lodge an application for Partner visa. She stated that she was not prepared to sacrifice her integrity by lodging an application based on a contrived relationship.

15. The parties provided evidence of stable self-employment, rental payments, and the secondary applicant’s Year 10 High School achievements. The Tribunal advised the parties that it had no doubts or queries regarding the evidence and testimony they provided. The Tribunal advised the parties again that an Assurance of support was a requirement for the visa. The parties confirmed that they have not been able to obtain an Assurance of Support.

    Findings

16. Cl.143.228 of Schedule 2 of the Regulations requires that the Minister is satisfied that an assurance of support in relation to the applicant has been accepted by the Secretary of Social Services. Cl.143.327 requires that the secondary applicant: (a) is included in the assurance of support given in relation to the person who satisfied the primary criteria, and that assurance has been accepted by the Secretary of Social Services; or (b) an assurance of support in relation to that applicant has been accepted by the Secretary of Social Services.

17. As no Assurance of Support has been provided, the primary applicant does not meet cl.143.228, and the secondary applicant does not meet cl.143.327.

18. Further, the Tribunal finds that the secondary applicant does not meet the time of decision criterion cl.143.321, which requires that the applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 143 visa.

    DECISION

19. The Tribunal affirms the decision to refuse the parties a Contributing Parent (subclass 143) visa.

    Adrienne Millbank
    Member