Malabute (Migration)

[2023] AATA 968

Malabute (Migration) [2023] AATA 968 (6 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Maureen Anne Malabute

REPRESENTATIVE:  Mr Newsam Antonio (MARN: 1683305)

CASE NUMBER:  2115222

HOME AFFAIRS REFERENCE(S):          CLF2019/7611

MEMBER:Meredith Jackson

DATE:6 April 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 445 visa:

·cl 445.221 of Schedule 2 to the Regulations

Statement made on 06 April 2023 at 11:08am

CATCHWORDS

MIGRATION – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent Child) – visa-holding parent – mother’s Partner visa cancelled – cancellation set aside upon review – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cls 445.111, 445.221

STATEMENT OF DECISION AND REASONS

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 a Extended Eligibility (Temporary) (Class TK) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 18 February 2019. The delegate refused to grant the visa on 12 October 2021.

2. The delegate made the decision on the basis that the applicant, Miss Maureen Anne Malabute, both at the time of application and the time of decision was not a dependent child of a visa-holding parent as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

ISSUES AND LAW

3.    The issue in the present case is whether, at the time of the delegate’s decision, the parent of the applicant continued to be a visa-holding parent.

4. A visa cannot be granted unless the relevant criteria specified in the Migration Act and the Regulations are satisfied. Regulation 445.221 was not met by the applicant at the time of the delegate’s decision.

5.    Regulation 445.221 requires that at the time of decision, the parent of the applicant continues to be a visa-holding parent.

6.    Visa-holding parent is defined at r 445.111, which states that the parent of an applicant is a visa-holding parent if he or she holds any of the following visas:

(a) Subclass 309 (Spouse (Provisional));
(aa) Subclass 309 (Partner (Provisional));
(b) Subclass 310 (Independency (Provisional));
(c) Subclass 445 (Dependent Child);
(d) Subclass 820 (Spouse);
(da) Subclass 820 (Partner);
(e) Subclass 826 (interdependency).

7.    At the time of application for the visa, the applicant’s mother Ms Naomi Malabute Graham (the visa-holding parent) was the holder of a Subclass 820 (Spouse) visa. The sponsor was her mother’s spouse, Australian citizen Stephen Alan Graham, the same person who sponsored the visa-holding parent.

8.    The delegate was satisfied that Naomi Malabute Graham is the applicant’s mother and  that Ms Graham was the holder of a subclass 820 visa at the time of lodgement for the visa under review.

9.    On 30 July 2021, Ms Graham’s Subclass 820 visa was cancelled by the Department. As a consequence of the cancellation, Ms Malabute’s application for the Subclass 445 visa was refused; the delegate was not satisfied that Ms Graham was a visa-holding parent at the time of decision of 12 October 2021. Ms Malabute was subsequently placed on a Bridging visa.

1. On 5 April 2023 the Tribunal, as presently constituted, set aside a decision (Tribunal case number 2109841; Home Affairs reference BCC2021/1220301) to cancel Ms Graham’s subclass 820 visa and substituted a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

2. In light of the Tribunal’s decision in Tribunal case number 2109841, the Tribunal is satisfied that the parent of the applicant was a visa-holding parent at the time of application for the visa and is a visa-holding parent as defined at the time of this decision. The appropriate course is to remit the decision for reconsideration.

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. 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

1. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 445 visa:

   ·cl 445.221 of Schedule 2 to the Regulations

Meredith Jackson
Member