Shang (Migration)

[2022] AATA 3312

Shang (Migration) [2022] AATA 3312 (26 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Guifang Shang

VISA APPLICANT:  Mr Jiashi Chen

REPRESENTATIVE:  Miss Vivian Wei Wei Wang (MARN: 0853910)

CASE NUMBER:  2012580

HOME AFFAIRS REFERENCE:               OSF2015/001070

MEMBER:Rosa Gagliardi

DATE:26 September 2022

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 116 visa:

·cl.116.321 of Schedule 2 to the Regulations.

Statement made on 26 September 2022 at 3:17pm

CATCHWORDS
MIGATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – member of family unit of primary visa holder – dependency – additional evidence of continuing education and financial dependency provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 116.321

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 Other Family (Migrant) (Class BO) under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 31 March 2015. The delegate refused to grant the visa on 5 August 2020.

2. The delegate made the decision on the basis that evidence was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. After the hearing held on 5 August 2022 the Tribunal received detailed and extensive material to support the contention that the applicant was ‘dependent’ as defined on the first named-visa applicant who has been granted a Carer visa (subclass 116), and that he therefore met cl.116.321. Specifically, the Tribunal is now satisfied that the applicant continues to be a member of the family unit of a person who is the holder of a subclass 116 visa.

4. The additional material includes, but is not limited to: -

• Evidence of continuing education for the applicant indicating that he had never worked in China;
  
  

• Evidence of continuing financial dependency on his mother (the first named visa applicant):
  and
  
  

• Current letter from educational provider explaining that when the Department had called to obtain verification of the applicant’s enrolment, the Department was met with stonewalling because the Principal considered he might have received a scam phone call which occur with increasing frequency in China – a matter the Tribunal accepts.

5. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

DECISION

6. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 116 visa:

• cl 116.321 of Schedule 2 to the Regulations.

Rosa Gagliardi
Member