Kolchina (Migration)

[2019] AATA 5685

Kolchina (Migration) [2019] AATA 5685 (20 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Antonina Aleksandrovna Kolchina

CASE NUMBER:  1920300

DIBP REFERENCE(S):  CLF2008/129176

MEMBER:Christine Cody

DATE:20 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

·cl.804.224 of Schedule 2 to the Regulations.

Statement made on 20 September 2019 at 2:18pm

CATCHWORDS

MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – providing approved Assurance of Support – Assurance of Support provided upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 1 Item 1124; Schedule 2, cls 804.224

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 applicant an Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of the Russian Federation, born in 1938. She applied for the visa on 1 October 2008. The delegate refused to grant the visa on 4 July 2019 on the basis that cl.804.224 was not satisfied because the applicant did not provide the requisite Assurance of Support (AOS). The applicant seeks review of the delegate’s decision.

3. 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.

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

   Relevant law

5. At the time the visa application was lodged, the Aged Parent (Residence) (Class BP) visa contained one subclass, Subclass 804 (Parent): Item 1124A in Part 1 of Schedule 1 to the Migration Regulations 1994 (the Regulations). The criteria for a Subclass 804 visa are set out in Part 804 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.804.224, which is a requirement that the Minister is satisfied that an assurance of support has been accepted by the Secretary of the Department of Family and Community Services.

   Is there an Assurance of Support which has been accepted by the Secretary of the Department of Family and Community Services?

6. The applicant provided to the Tribunal a copy of the delegate’s decision record dated 4 July 2019. It indicates that, on 11 March 2019, records from Centrelink indicate that the application for an AOS had been rejected as the assurer failed to meet the income test. It was stated that as at that date (4 July 2019) there was nothing before the delegate to indicate that Centrelink had approved the AOS, and thus the visa application was rejected.

7. An analysis of the Departmental and Tribunal files includes the following:

   ·     On 10 December 2018, the Department sent a letter to the applicant (who generally corresponded through her daughter, the sponsor[1]) requesting that the applicant provide an AOS.

   [1] After the cessation of the appointment of a migration agent.

   ·     On 11 December 2018, the sponsor’s husband (“the assurer”) lodged an application for an AOS in support of the visa application.

   ·     On 21 February 2019, the Department again requested that the applicant provide an AOS. The applicant responded and informed the Department that an application had already been made to Centrelink for the AOS.

   ·     On 12 March 2019, Centrelink rejected the application for an AOS, as the assurer failed the income test.  Centrelink advised that the assurer could make a joint application with another person in order to meet the income requirements.

   ·     On 21 March 2019, the assurer lodged an application for a joint AOS, so as to meet the income requirements.

   ·     On 30 April 2019, the Department contacted the applicant and stated that Centrelink had advised them that the AOS had been rejected.  The Department recommended that the applicant make a joint application for an AOS.

   ·     On 3 July 2019, Centrelink requested a bank guarantee in order to finalise the application for an AOS.

   ·     (As noted above), on 4 July 2019, the Department refused the application for the BP-804 visa, stating that there was no evidence before the Department that an AOS had been approved by Centrelink.

   ·     On 5 July 2019, a bank guarantee was provided to Centrelink and the Department.

   ·     On 6 July 2019, the applicant was notified of the Department’s decision to refuse the application for a BP-804 visa.

   ·     On 11 July 2019, Centrelink notified the assurer that the application for AOS had been approved, and stated that Centrelink would notify the Department that the application had been approved.

   ·     On 24 July 2019, the applicant applied to the Tribunal for review of the Department’s decision.

8. It appears to be the view of the Department that they were mistaken in proceeding to reach their decision to refuse the visa. However, as the applicant had lodged an application for review to the Tribunal, they were unable to rectify their decision.

9. The Tribunal considers that there is a reviewable decision to refuse a visa before it. In this review, there is a single issue before the Tribunal: whether the applicant satisfies cl.804.224, namely that an assurance of support has been accepted by the Secretary of the Department of Family and Community Services. On the evidence before it, namely a letter dated 11 July 2019 from Centrelink to the sponsor’s husband (the assurer) stating that his AOS application was accepted in relation to the applicant, the Tribunal is so satisfied.

10. The Tribunal is satisfied that the applicant meets cl. 804.224.

    Conclusion

11. 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 804 visa.

    DECISION

12. The Tribunal remits the application for an Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

    ·cl.804.224 of Schedule 2 to the Regulations.

    Christine Cody
    Member