Shu (Migration)

[2019] AATA 2166

Shu (Migration) [2019] AATA 2166 (8 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Di Shu

VISA APPLICANTS:  Mr Guojing Shu
Ms Chuang Jiang

CASE NUMBER:  1903259

DIBP REFERENCE(S):  2008/066007 OSF2008/066007

MEMBER:David Barker

DATE:8 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Parent (Migrant) (Class AX) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

·cl.103.226 of Schedule 2 to the Regulations; and

·the second named visa applicant meets cl.103.325 of Schedule 2 to the Regulations.

Statement made on 08 May 2019 at 10:46am

CATCHWORDS
MIGRATION – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) – assurance of support – evidence of acceptance by Department of Human Services, Centrelink – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 103.226, 103.325

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 to refuse to grant the visa applicants Parent (Migrant) (Class AX) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 15 October 2008. The delegate refused to grant the visas on 21 January 2019 on the basis that cl.103.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not satisfied because an assurance of support, accepted by the Secretary, Department of Community Services, as required by the criterion was not provided.

3. In reaching its decision the Tribunal was able to find in favour of the applicant on the basis of the material before it, and determined not to invite the applicant to appear at a hearing pursuant to section 360(2)(a) of the Act.

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

   RELEVANT LAW

5. At the time the visa application was lodged, the Parent (Migrant) (Class AX) visa contained Subclass 103 (Parent): Item 1124 of Schedule 1 to the Regulations.

6. The Parent (Migrant) (Class AX) visa is a permanent visa for parents of settled Australian citizens, Australian permanent residents and eligible New Zealand citizens who satisfy the ‘balance of family’ test.

7. At the time of decision, among the primary criteria to be satisfied are that an assurance of support has been accepted by the Secretary of the Department of Family and Community Services: cl.103.226

   CLAIMS AND EVIDENCE

8. After the visa applicants applied for Parent (Migrant) (Class AX) visas in October 2008 their application was placed in a queue awaiting assessment. On 12 September 2017 after the application was released from the queue, the Department wrote to the primary visa applicant requesting further documents, including an assurance of support from the Department of Human Services, as this is a mandatory criterion of the Parent visa subclass. No response to this letter was received by the Department.

9. As no information was provided as requested, the Department refused the visa applications.

10. The sponsor and daughter of the applicants (the review applicant) applied for review of the decisions to the Administrative Appeals Tribunal on 12 February 2019.

11. On 20 February 2019 the Tribunal sent a letter to the review applicant, through an email to the registered migration agent representing her in relation to the review. This letter requested information regarding the assurance of support and asked that this information, in writing, be provided by 20 March 2019.

12. On 13 March 2019 the Tribunal received an email from the representative which indicated an assurance of support application have been submitted on 25 February 2019 and as the estimated completion date provided by the Centrelink online portal was 8 April 2019, an extension of time to provide the evidence of an accepted assurance of support was requested.

13. On 5 April 2019 the Tribunal received an email from the representative which indicated the person providing the assurance of support, the assuror, had received a letter from Centrelink requesting a bank guarantee in relation to the assurance of support and that this would be arranged as soon as possible.

14. On 12 April 2019 the Tribunal received a further email from the representative indicating the assuror was advised in writing by the Department of Human Services, Centrelink that his application, lodged on 25 February 2019, to provide an assurance of support for the visa applicants has been accepted.  A copy of the Department of Human Services, Centrelink document accompanied the representative’s email.

    Findings and reasons

15. The Tribunal finds that the review applicant has now provided evidence that the required assurance of support has been accepted by the Department of Human Services, Centrelink and the Tribunal is satisfied that this Commonwealth agency has done so on behalf of the Secretary of Social Services.

    Conclusions

16. For the reasons given above the Tribunal finds the first named visa applicant satisfies the requirements of cl.103.226.

17. The second named visa applicant is included in the assurance of support given in relation to the first named visa applicant, and on this basis the Tribunal finds that the second named visa applicant satisfies the requirements of cl.103.325.

    DECISION

18. The Tribunal remits the applications for Parent (Migrant) (Class AX) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 103 (Parent) visa:

    ·The first named visa applicant meets cl.103.226 of Schedule 2 to the Regulations; and

    ·the second named visa applicant meets cl.103.325 of Schedule 2 to the Regulations.

    David Barker
    Member