Peters (Migration)

[2023] AATA 1431

Peters (Migration) [2023] AATA 1431 (11 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Hoang Minh Thu Peters

VISA APPLICANT:  Mrs Trinh Thuy Thuy Do

CASE NUMBER:  2214320

HOME AFFAIRS REFERENCE:               BCC2022/2951351 PNJ

MEMBER:L. Symons

DATE:11 May 2023

PLACE OF DECISION:  Sydney

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

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 11 May 2023 at 10:38am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – birth Certificates indicate that they have the same parents – Tribunal is satisfied that visa applicant is sponsored by a relative – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, r 1.03, Schedule 2, cls 600.211, 600.232

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 on 20 September 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 29 July 2022. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case, the visa applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.232 which sets out the sponsorship requirements. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.232(2)(a) because she did not provide any evidence that her sponsor was a relative. On 28 September 2022, the review applicant applied to the Tribunal for a review of that decision.

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 review 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 AND FINDINGS

6. The issue in this case is whether the visa applicant satisfies the requirements of cl 600.232.

7. Clause 600.232 provides that:

   (1)  One of 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 applicant 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. 

8. In the present case, the review applicant has sponsored the visa applicant for this visa. She claims that she is a settled Australian citizen. The records of the Department indicate that she was conferred Australian citizen on 30 July 2013. Her Birth Certificate indicates that she was born on 28 June 1983 and she is therefore almost 40 years old. Her Marriage Certificate indicates that she was married on 22 August 2008. Her evidence is that she and her husband have two children. The evidence before the Tribunal indicates that they have purchased a home and are currently paying off a mortgage through the Westpac bank.

9. Therefore, the Tribunal is satisfied that the visa applicant is sponsored by a settled Australian citizen who is at least 18 years old.

10. The review applicant claims that the visa applicant is her sister. She has provided the Tribunal with copies of her Birth Certificate and the visa applicant’s Birth Certificate. The two Birth Certificates indicate that they have the same parents. Therefore, the Tribunal is satisfied that they are sisters.

11. Regulation 1.03 of the Migration Regulations (the Regulations) defines ‘relative’ to include a close relative. A ‘close relative’ is defined in r.1.03 of the Regulations as a spouse or defacto partner, a child, parent, brother, sister, step-child, step-brother or step-sister of the person. Therefore, the Tribunal is satisfied that the visa applicant is sponsored by a relative.

12. In view of the above, the Tribunal finds that the visa applicant is sponsored by a settled Australian citizen, who is at least 18 years old, and is a relative of the visa applicant.

13. Therefore, the Tribunal finds that the visa applicant satisfies the requirements of cl 600.232.

    DECISION

14. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl 600.232 of Schedule 2 to the Regulations.

    L. Symons
    Member