Valkovich (Migration)

[2023] AATA 1376

Valkovich (Migration) [2023] AATA 1376 (12 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Natalia Valkovich

VISA APPLICANT:  Mr Igor Kononets

CASE NUMBER:  2216582

HOME AFFAIRS REFERENCE(S):          BCC2022/4124780

MEMBER:Alison Murphy

DATE:12 May 2023

PLACE OF DECISION:  Melbourne

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

·cl 600.232 of Schedule 2 to the Regulations.

Statement made on 12 May 2023 at 5:27pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsorship by citizen or permanent resident – no evidence of relationship between applicant and sponsor provided with application – birth certificates and evidence of changes of names provided to tribunal – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 600.232(2)(a)

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 Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 1 October 2022. The delegate refused to grant the visa on 10 November 2022.

2. The delegate made the decision on the basis that evidence of the visa applicant’s relationship with the sponsor was not provided as required to satisfy cl.600.232 for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. Cl.600.232 provides as follows:

   (1)      one of the 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 application 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.

   My decision

4. The visa applicant is sponsored by the review applicant, Mrs Natalia Valkovich, stated in the sponsorship application to be his sister. The delegate’s decision recorded that the sponsor stated that the visa applicant was her relative but failed to provide a birth certificate or other evidence of their relationship. As a result, the delegate was not satisfied the visa applicant was sponsored by a prescribed person and concluded he did not meet the criteria set out in cl.600.232.

5. On 11 April 2023 the Tribunal received evidence of the relationship between the sponsor and the visa applicant, being:

   ·Birth certificates of the sponsor and the visa applicant indicating that they were born Igor Viktorovich Tsoy and Natalia Victorovna Tsoy and each have the same parents, being Viktor Sergeievich Tsoy and Erica Fyodorvna Tsoy;

   ·A marriage certificate and English language translation for the visa applicant issued by the Department of the Civil Registry in Sochi, Russia issued on 19 December 2009, indicating that his name at the time of the marriage was Igor Viktorovich Tsoy and after the marriage he and his wife were both given the surname Kononets;

   ·A divorce certificate and English language translation for the visa applicant issued on 23 June 2022, indicating that he retained the surname Kononets after the divorce;

   ·A marriage and change of name certificate for the sponsor issued by the Registry of Birth, Deaths and Marriages in NSW, indicating she changed her surname from Tsoy to Valkovich at the time of her marriage in 1999;

6. In light of the new evidence received, the Tribunal is satisfied that the sponsor Natalia Valkovich is over the age of 18 and that she is the sister of the visa applicant, Igor Kononets. As such she is his ‘close relative’ as that term is defined in r.1.03 and a ‘relative’ for the purposes of cl.600.232(2)(a). Departmental records confirm that the sponsor is an Australian citizen. As such the Tribunal is satisfied that the visa applicant is sponsored by a relative who is at least 18 years old and an Australian citizen. Therefore the criterion in of cl.600.232 is met and the Tribunal has concluded that the matter should be remitted for reconsideration.

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   DECISION

8. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

   ·of cl.600.232 of Schedule 2 to the Regulations

   Alison Murphy
   Member