Sacko (Migration)

[2023] AATA 385

Sacko (Migration) [2023] AATA 385 (27 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Aissata Esther Sacko

CASE NUMBER:  2003332

HOME AFFAIRS REFERENCE(S):          CLF2018/47804

MEMBER:David Crawshay

DATE:27 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets cl.802.215 and cl.802.226 of Schedule 2 to the Regulations for a Subclass 802 visa.

Statement made on 27 February 2023 at 9:38am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – sponsorship approved and in force – sponsor’s permanent visa cancelled for failing to inform department of change in circumstances – cancellation set aside on review and visa reinstated – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 104, 109
Migration Regulations 1994 (Cth), Schedule 2, cls 802.215(b), 802.226

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 4 February 2020 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 applied for the visa on 15 May 2018. 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). The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority, the criteria to be met in this case include cl.802.215(b). The criteria also include cl.802.226, which requires that the sponsorship mentioned in cl.802.215 be approved by the Minister and still be in force.

3. The delegate refused to grant the visa on the basis that cl.802.226 was not met. While the delegate accepted that the applicant was validly sponsored as per cl.802.215(b) at the time of application, the delegate found that that sponsorship was not still in force at the time of the decision owing to the sponsor’s own permanent visa (a partner visa) being cancelled.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. For the reasons outlined in the delegate’s decision, the Tribunal accepts that the applicant satisfies cl.802.215 at the time of application. The issue is whether the sponsorship of the applicant is in force at the time of this decision. As above, this is an issue because the sponsor, the applicant’s father, had his visa cancelled under s.109 of the Act for failing to inform the Department of a change in circumstances as he was obliged to under s.104.

6. On 2 September 2020, a differently-constituted Tribunal set aside the cancellation of the sponsor’s visa and the visa has been reinstated As a result, the present Tribunal accepts that the sponsor is the holder of a permanent visa and is able to sponsor the applicant.

7. Regulation 1.20KB limits the Minister’s discretion to approve sponsorships. This limitation applies for sponsors who are charged with or convicted of a “registrable offence” where one or more of the applicants are under 18 at the time of the decision. No information exists demonstrating that the sponsor has been charged with or convicted of a registrable offence, and this limitation does not apply.

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

   DECISION

9. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets cl.802.215 and cl.802.226 of Schedule 2 to the Regulations for a Subclass 802 visa.

   David Crawshay
   Member