Xu (Migration)

[2017] AATA 1080

Xu (Migration) [2017] AATA 1080 (28 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Huai Zhuang Xu

VISA APPLICANTS:  Mr Zhou Peng Xu
Mrs Ke Zhen She

CASE NUMBER:  1609411

DIBP REFERENCE(S):  osf2007/069664

MEMBER:Meena Sripathy

DATE:28 June 2017

PLACE OF DECISION:  Sydney

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

·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.

Statement made on 28 June 2017 at 2:55pm

CATCHWORDS
Migration – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) – Assurance of Support provided – Accepted by Secretary of Department of Family and Community Services – Legislative requirements are satisfied

LEGISLATION
Migration Act 1958, s. 65
Migration Regulations, Schedule 1, Item 1124, Schedule 2, cl 103.226, cl 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 6 June 2007. The delegate refused to grant the visas on 31 May 2016 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.

   RELEVANT LAW

3. 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.

4. 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. The criteria for a Subclass 103 visa are set out in Part 103 of Schedule 2 to the Regulations.

5. 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

6. The issue in the present case is whether an assurance of support as required by cl. 103.226 has been arranged and accepted by the Department of Family and Community Services.

   CLAIMS AND EVIDENCE

7. The applicants were advised by the Department on 13 February 2009 that their application was placed in a queue and their queue date was 5 February 2009 and that they would be contacted again when further visa places become available in a future Program Year. 

8. On 7 January and 4 April 2016, the applicants were contacted by the Department to arrange an Assurance of Support from the Department of Family and Community Services, as this is a mandatory criterion of the Parent visa subclass.

9. On 31 May 2016, the application was refused on the basis that no Assurance of Support was provided. 

10. The sponsor of the applicants applied for review of the decisions to the Administrative Appeals Tribunal on 24 June 2016.  The application was accompanied with a letter from the sponsor requesting an opportunity to provide the required assurance of support.

11. On 19 July 2016 the sponsor (the review applicant) provided another letter indicating that a friend would like to assist by providing a portion of the assurance of support.  A letter from the friend, Nigel Masters, confirming this intention, was enclosed.

12. On 20 September Mr Masters wrote to the Tribunal again advising of his revised offer of support for the visa applicants’ assurance of support.

13. On 1 November 2016 the Tribunal wrote to the review applicant and invited her to provide evidence that an Assurance of Support in relation to the visa applicants has been accepted by the Secretary of the Department of Family and Community Services.  Information about how to obtain an Assurance of Support from Centrelink was attached to the letter. The information was requested to be provided by 15 November 2016.

14. On 23 January  2017, having not received any evidence of an approved assurance of support, the Tribunal wrote to the review applicant to invite her to a hearing on 7 March 2017 to give evidence and present arguments relating to the issues in the case.

15. On 1 March 2017 the Tribunal received a further letter from Mr Masters explaining his attempts to obtain an approved assurance of support from Centrelink. 

16. The review applicant appeared before the Tribunal on 7 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Masters.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

17. The review applicant explained to the Tribunal that her father did not receive the first letter from the Department requesting the assurance of support.  He received the second letter sent in April, but by the time he asked a friend to help him to understand it, and sent it on to the review applicant it was already May.  The review applicant tried to request additional time to prepare the necessary papers but the Department already made its decision to refuse the applications.  The review applicant told the Tribunal she did not receive the letter from the Tribunal explaining how she must get an assurance f support from Centrelink.  The Tribunal noted that it was sent to her email address.  She requested future correspondence be sent to her postal address. 

18. Mr Masters explained to the Tribunal that in February 2017 he accompanied the review applicant to Centrelink and they completed all the forms and have lodged a request for an assurance of support.  Following this, she received a letter from Centrelink confirming an application to claim payment.  They have since contacted Centrelink and they have confirmed this letter was sent in error, but that the assurance of support request has been logged.  The Tribunal told the review applicant if the assurance of support is approved, she must provide evidence of this to the Tribunal and it will remit the matter on that basis.  If it is not approved she may have appeal rights in respect of that decision. She can request the Tribunal to wait until she pursues her appeal and the Tribunal will consider her request.  The Tribunal provided a period of 4 weeks, until 4 April 2017, for the review applicant to provide evidence of an approved assurance of support.

    FINDINGS AND REASONS

19. The issue arising for consideration in this review is whether the visa applicant meets cl. 103.226 which requires that an assurance of support in relation to the applicant has been accepted by the Secretary of the Department of Family and Community Services.

20. On 13 February 2017 an application for approval of an Assurance of Support in relation to the visa applicants was made to Centrelink.  On 20 June 2017 the review applicant advised the Tribunal that the assuror provided a bank guarantee as required. 

21. On 16 June 2017 Mr Masters was advised in writing by Centrelink that his application to provide an Assurance of Support for the visa applicants has been accepted by Centrelink, on behalf of the Secretary of the Department of Family and Community Services.

22. On the basis of this evidence, the Tribunal finds that an assurance of support in relation to the visa applicants has been accepted by the Secretary of the Department of Family and Community Services.

    CONCLUSIONS

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

24. 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

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

    ·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.

    Meena Sripathy
    Member