Nguyen (Migration)

[2021] AATA 2533

Nguyen (Migration) [2021] AATA 2533 (19 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Tran Hai Dang Nguyen

CASE NUMBER:  2100074

HOME AFFAIRS REFERENCE(S):          CLF2019/25578

MEMBER:Kira Raif

DATE:19 May 2021

PLACE OF DECISION:  Sydney

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 19 May 2021 at 2:54pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Vietnamese and Australian police clearance certificates provided – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 802.226, r 1.20KB

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 a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Vietnam, born in June 2017. He applied for the visa on 7 June 2019. The delegate refused to grant the visa on 15 December 2020 on the basis that the applicant did not meet cl. 802.226 because the sponsor had not provided the relevant police clearance certificates. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. The criteria for a Child (Residence) (Class BT) visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

5. Clause 802.226 requires that the sponsorship has been approved by the Minister. Regulation 1.20KB limits the discretion to approve sponsorships. Essentially, it relates to sponsors who have been charged with, or convicted of, registrable offences.

   Should the sponsorship be approved?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  the applicant made the application on the basis of being a dependent child of his mother and was sponsored by his mother Mai Ngoc Han Tran. As the applicant was born in June 2017, the Tribunal finds that he is under the age of 18 at the time of application and at the time of this decision.

7. In September 2020 the delegate wrote to the sponsor requesting her to provide the police clearance certificates from China and Australia. (The delegate subsequently confirmed to the Tribunal that the reference to China was in error and the request related to Vietnam.) As the sponsor had not provided these documents, the delegate concluded that cl. 802.226 was not met.

8. The sponsor provided her Vietnamese and Australian police clearance certificates to the Tribunal. Both show no adverse court outcomes. Having regard to that evidence, the Tribunal is satisfied that the sponsor has not been convicted of registrable offences. There is nothing before the Tribunal to suggest that the sponsor has been charged with such offences. The Tribunal finds that the limitations set out in r. 1.20KB do not apply in this case.

9. There does not appear to be any other reason why the sponsorship should not be approved. The Tribunal finds that the sponsorship is to be approved and the applicant meets cl. 802.226.

   Conclusion

10. On the basis of the above findings, the applicant meets cl. 802.226.

    DECISION

11. 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

    Kira Raif
    Senior Member