Mendis (Migration)

[2024] AATA 2798

Mendis (Migration) [2024] AATA 2798 (30 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Rasika Beatrice Mendis

VISA APPLICANT:  Mr Damidu Prabudda Hashan Jayamaha Mudalige Don

CASE NUMBER:  2403859

HOME AFFAIRS REFERENCE(S):          BCC2023/6525386

MEMBER:Jane Marquard

DATE:30 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

·cl 600.232 of Schedule 2 to the Regulations

Statement made on 30 July 2024 at 6:41am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – sponsored by a settled Australian resident relative – Birth Certificate name variations – decision under review remitted   

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 600.232; r 1.03

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 visa applicant, Damidu Prabudda Hashan Jayamaha Mudalige Don, a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant is a citizen of Sri Lanka. He applied on 12 November 2023 under the Sponsored Family stream to visit his family in Australia. The visa applicant claimed that the review applicant, Mrs Mendis (who is his nominated sponsor) is his aunt.

3. A delegate of the Department of Home Affairs (the Department) refused to grant the visa on 30 January 2024. The delegate was not satisfied that the sponsor (referred to in this decision as the review applicant) was the aunt of the visa applicant as sufficient documentation had not been provided. The delegate was not satisfied therefore that the visa applicant met cl 600.232 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

4. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   SUMMARY OF RELEVANT LAW

5. The criterion for a Visitor (Class FA) (Subclass 600) visa are set out in Clause 600 of Schedule 2 to the Regulations. The visa applicant has applied for a visa under the Sponsored Family stream.

6. Relevantly to this matter, cl 600.232 provides that:

   600.232
   (1) one of the subclauses (2) to (4) applies.
   (2) The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent
   resident, who is at least 18 and;
   (a) a relative of the applicant; or
   (b) a relative of another applicant who is a member of the family unit of the applicant; or
   (c) a relative of another application in relation to whom the applicant is a member of the
   family unit.
   (3) The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent
   resident, who:
   (a) is a member of the Commonwealth Parliament or a State Parliament; or
   (b) is a member of the Legislative Assembly of the Australian Capital Territory or the
   Northern Territory; or
   (c) Holds the office of mayor.
   (4) The applicant is sponsored by a Commonwealth government agency or instrumentality or a
   State or Territory government agency or instrumentality.

7. Regulation 1.03 defines ‘close relative’ as:

   (a) the spouse or de facto partner of the person; or
   (b) a child, parent, brother or sister of the person; or
   (c) a step-child, step-brother or step-sister of the person.

8. Regulation 1.03 defines ‘relative’ (for the purpose of this type of visa) as:

   (i)  a close relative; or
    (ii)  a grandparent, grandchild, aunt, uncle, niece or nephew, or a step - grandparent, step - grandchild, step - aunt, step - uncle, step - niece or step - nephew.

   EVIDENCE CONSIDERED IN THIS REVIEW

9. The Tribunal has considered the evidence before the Department and new documentation produced to this Tribunal.

10. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

    FINDINGS AND REASONS

11. Clause 600.232 of Schedule 2 to the Regulations requires that the visa applicant is sponsored by a relative, as defined in Regulation 1.03 of the Regulations.

12. The delegate was not satisfied that the visa applicant was sponsored by a relative as sufficient documentation had not been provided. New documentation has been provided to the Tribunal.

13. The Tribunal has before it a copy of the Birth Certificate of the sponsor, Mrs Mendis, which shows that her father’s name is Payanarla Mudatige Don Philipness Aloysius and her mother’s name is Bastian Koralelege Flora Winifred Rodrigo.

14. The Tribunal also has a copy of the Birth Certificate for the visa applicant, Damidu Prabudda Hashan Jayamaha Mudalige Don which shows that his father is Jayamaha Mudalige Don Rexin Bernard (deceased) and his mother is Kande Lekamage Morina Annet Shamali Pelgris.

15. A Birth Certificate provided for the visa applicant’s father, Jayamaha Mudalige Don Rexin Bernard (deceased) shows that his father is Payanarla Mudatige Don Philipness Aloysius and his mother’s name is Bastian Koralelege Flora Winifred Rodrigo.

16. A Certificate of Relationship was provided from the Grama Niladhari Office dated 22 February 2024. The Certificate stated that according to the birth certificates, Raskia Beatrice Jayamah is the sister of Jayamaha Mudalige Don Rexin Bernard (deceased).

17. An Affidavit of the visa applicant dated 6 November 2023 stated that in his Birth Certificate his name is written somewhat differently using his father’s name. His mother’s name is also mentioned somewhat differently using her mother’s name.

18. These Birth Certificates demonstrate the visa applicant’s father is the brother of the sponsor (review applicant). The Tribunal is satisfied therefore that the sponsor (review applicant) is the aunt of the visa applicant.

19. The Tribunal is satisfied that the visa applicant is sponsored by a ‘relative’ of the visa applicant as that term is defined in reg 1.03 (ii) of the Regulations, which includes ‘aunt’.

20. In light of the new evidence received, the Tribunal is satisfied that cl 600.232 of Schedule 2 is met and has concluded that the matter should be remitted for reconsideration.

    DECISION

21. The Tribunal remits the application for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 600 visa:

    ·cl 600.232 of Schedule 2 to the Regulations

    Jane Marquard
    Member