MAK (Migration)

[2018] AATA 2353

MAK (Migration) [2018] AATA 2353 (25 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sin Ting MAK

CASE NUMBER:  1710241

HOME AFFAIRS REFERENCE(S):         CLF2015/78315

MEMBER:Kate Millar

DATE:25 June 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl.802.226 of Schedule 2 to the Regulations.

Statement made on 25 June 2018 at 3:01pm

CATCHWORDS
Migration – Child (Residence) (Class BT) visa – Subclass 802 (Child) – Sponsor’s visa cancelled – Sponsor’s visa set aside by the Tribunal – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 802.215, 802.226

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 May 2017 to refuse to grant Ms Mak a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Mak for the visa on 14 December 2015. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.226 which requires that at the time of the decision the sponsorship mentioned in cl.802.215 has been approved by the Minister and is still in force.

4. Clause 802.215 requires that at the time of the visa application, the person is sponsored by a person who has turned 18 and is an Australian citizen, holder of a permanent visa or an eligible New Zealand citizen and the applicant is a dependant child of that person.

5. Ms Mak was sponsored by her father Mr Kim Ling Mak, who was granted a Subclass 143 visa in April 2015.  His visa was cancelled in March 2017. 

6. The delegate acknowledges that Ms Mak met cl.802.215 at the time of the application, however as her sponsor’s visa was cancelled on 27 March 2017 she was no longer sponsored by an Australian permanent resident.

7. On 9 November 2017 the decision to cancel Mr Kim Ling Mak’s visa was set aside by this Tribunal (differently constituted) and replaced with a decision not to cancel the visa. A search of Mr Mak’s movement records shows he is currently onshore and holds an indefinite visa. 

8. As a result, at the time of this decision Mr Mak holds a subclass 143 visa and is a holder of a permanent visa.  Accordingly the requirements in cl.802.226 are met. 

9. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

   DECISION

10. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl.802.226 of Schedule 2 to the Regulations.

    Kate Millar
    Member