PEDROSO (Migration)

[2018] AATA 1025

PEDROSO (Migration) [2018] AATA 1025 (20 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Jean Lorenz Syrick PEDROSO

CASE NUMBER:  1708718

DIBP REFERENCE(S):  CLF2016/36115

MEMBER:Moira Brophy

DATE:20 March 2018

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 20 March 2018 at 2:23pm

CATCHWORDS

Migration – Child (Residence) (Class BT) visa – Subclass 802 visa – Sponsor’s police clearance from Australia and the Philippines provided to the Tribunal

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994 r 1.20KB Schedule 2 cls 802.215, 802.216, 802.226, 802.226A

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 30 March 2017 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 13 March 2016. 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 and regulation 1.20KB. Sub-regulation 12 provides that in addition to other requirements the applicant may be requested to provide within a reasonable time, a police clearance from each country the sponsor has lived in for a total of 12 months or more in the last ten years. The sponsor was asked to provide the relevant clearance on 7 October 2016, and again on 5 December 2016 and 7 February 2017. The delegate determined that as at the date of his decision (30 March 2017) the requested documents had not been provided and accordingly found the applicant was not able to meet the requirements of cl. 802.226.

4. The applicant seeks review of the delegate’s decision.

5. No hearing was held in this case as the Tribunal was able to make a favourable determination on the materials before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Sponsorship

6. As the visa application is not supported by a letter of support from a State or Territory government welfare authority, the applicant does not meet cl.802.215(a) and must meet the requirements in cl.802.215(b). Clause 802.215(b) requires that, at the time of application, the applicant is sponsored by a person who has turned 18, is an Australian citizen, permanent visa holder or an eligible New Zealand citizen. The sponsor must be either the person for whom the applicant is their dependent child, or a cohabiting spouse or de facto partner of that person.  At the time of decision, this sponsorship must have been approved and still be in force: cl.802.226.

7. As outlined in the decision of the delegate the applicant must be sponsored at the time of application by an eligible person. At the time of application the sponsor indicated she had lived in both Australia and the Philippines for a cumulative period of over 12 months in the previous ten years. The sponsor provided an AFP certificate dated 26 October 2016. Accordingly as part of the enquiry to assess the eligibility of the sponsor the applicant was asked to provide a police clearance certificate from the Philippines for the sponsor. The applicant was asked to provide the relevant clearance on 7 October 2016, and again on 5 December 2016 and 7 February 2017. It appears that clearance was not provided and as a result the visa application was refused.

8. The applicant has now provided to the Tribunal the sponsor’s Philippines penal certificate. The certificate states there are no reportable outcomes and it is less than 12 months old at the time of this decision.

9. As the applicant has now provided the requested information the delegate is now able to assess whether the remaining criteria for the grant of a visa are met.

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

    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; and

    Moira Brophy
    Member