PATEL (Migration)

[2017] AATA 310

PATEL (Migration) [2017] AATA 310 (1 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SIDDHARTH YATIN PATEL

CASE NUMBER:  1506485

DIBP REFERENCE(S):  BCC2015/553749

MEMBER:Antonio Dronjic

DATE:1 March 2017

PLACE OF DECISION:  Melbourne

DECISION:The tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration with a direction that the first named visa applicant meets the following criterion for a subclass 489 visa

· cl.489.225(3) of Schedule 2 to the Regulations.

Statement made on 01 March 2017 at 11:22am

CATCHWORDS

Migration – Skilled Regional Sponsored (Provisional) – Subclass 489 – Relationship to sponsor – Hearing not required – Evidence provided – First cousins

LEGISLATION

Migration Act 1958, ss 65, 360(2)(a)

Migration Regulations 1994, Schedule 2, cl 489.225(3)

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 Immigration on 1 May 2015 to refuse to grant the visa applicant a Skilled Regional Sponsored (Provisional) Subclass 489 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 February 2015. The visa applicant applied for the visa on 23 May 2015.  The delegate refused to grant the visa on the basis that she was not satisfied, on the evidence provided, that the primary visa applicant was related to the sponsor.

3. The applicant applied for review of the primary decision on 12 May 2015 and provided a copy of the department’s decision. He was represented in relation to the review by his registered migration agent.

4. In reaching its decision the tribunal did not consider a hearing to be necessary, as it was able to find in favor of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

5. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets cl.489.225(3)(d).

7. Relevantly, cl.489.225(3) provides that the Minister has accepted the sponsorship of the applicant by a person in the following circumstances:

   (a)      the person has turned 18; and

   (b)      the person is an Australian citizen, Australian permanent resident or eligible New Zealand citizen;

   (c)      the person is usually resident in a designated area of Australia;

   (d)      the person is related to the applicant, or the applicant’s spouse or de facto partner (if the applicant’s spouse or de facto partner is an applicant for a Subclass 489 visa), as:

   (i)      a parent; or

   (ii)      a child or step-child; or

   (iii)      a brother, sister, adoptive brother, adoptive sister, step-brother or step-sister; or

   (iv)      an aunt, uncle, adoptive aunt, adoptive uncle, step-aunt or step-uncle;

   (v)      a nephew, niece, adoptive nephew, adoptive niece, step-nephew or step-niece; or

   (vi)      a grandparent; or

   (vii)      a first cousin;

   (e)      each member of the family unit of the applicant who is an applicant for a Subclass 489 visa is sponsored by that person.

8. The tribunal bases its findings on the evidence provided to the tribunal and, where relevant, evidence provided to the department.

9. Relying on the bio data page of his passport the tribunal is satisfied that the sponsor, Mr Sachin Narendra Patel has turned 18 years.  Therefore cl.489.225(3)(a) is met.

10. Relying on the bio data page of his passport the tribunal is satisfied that the sponsor, Mr Sachin Narendra Patel is an Australian citizen. Therefore cl.489.225(3)(b) is met.

11. 'Designated area' is defined in r.1.03 to mean an area specified as a designated area by the Minister in an instrument in writing. The entire State of Victoria is specified to be a designated area.  Documents including: Vic Roads Certificate of 18 February 2014 and Rates Installment notice issued in the name of sponsor all record the sponsor’s residential address as being in Victoria.   Consequently the tribunal is satisfied that the sponsor is usually resident in a designated area of Australia.  Therefore cl.489.225(3)(c) is met.

12. The delegate was not satisfied that the primary visa applicant is related to the proposed sponsor Mr Sachin Narendra Patel.  In this respect the tribunal makes the following findings:

13. The visa applicant, Mr Siddhart Yatin Patel and his sponsor, Mr Sachin Narendra Patel are first cousins.

14. On review a copy of the sponsor’s bio data page of his Indian passport has been provided which records his father’s name as Mr Narendra Thakorlal Patel.(tribunal folio 84)

15. On review a copy of the visa applicant’s bio data page of his Indian passport has been provided which records his father’s name as Patel Yatin Thakorlal. (tribunal folio 65)

16. The visa applicant submitted a copy of his father’s Indian passport stating the name of his father to be Thakorlal Maneklal Patel.(tribunal folio 27)

17. The applicant provided a copy Indian passport of sponsor’s father stating the name of his father to be Thakorlal Maneklal Patel (tribunal folio 17).

18. The applicant’s father provided a Statutory Declaration dated 17 February 2014 confirming that Mr Narendra Thakorlal Patel is his elder brother who has a son Sachin Narendra Patel (sponsor).

19. The applicant submitted a family Tree chart explaining the relationship between the sponsor and the visa applicant.(tribunal folios 18 and 67)

20. Based on the evidence before me, which was not before the delegate at the time of primary decision, I am satisfied that the sponsor and the visa applicant are first cousins: cl.489.225(3)(d)(vii). Therefore cl.489.225(d) is met.

21. The applicant is the sole visa applicant and did not include any members of the family unit in the application. Therefore cl.489.225(e) is not applicable.

22. The tribunal is therefore satisfied that the applicant meets cl.489.225(3) in its entirety.

23. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider any remaining criteria for a Subclass 489 visa.

    DECISION

24. The tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the first named visa applicant meets the following criterion for a subclass 489 visa:

    ·cl.489.225(3) of Schedule 2 to the Regulations

    Antonio Dronjic
    Member