XUE (Migration)

[2018] AATA 3625

XUE (Migration) [2018] AATA 3625 (25 July 2018)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SHOUGUI XUE

CASE NUMBER:  1705278

DIBP REFERENCE(S):  BCC2010/210500

MEMBER:Kira Raif

DATE OF DECISION:  25 July 2018

DATE CORRIGENDUM

SIGNED:24 September 2018

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The words “Date of Decision: 25 July 2017” on the front page of the Decision Record should be replaced with “Date of Decision: 25 July 2018”.

Kira Raif
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SHOUGUI XUE

CASE NUMBER:  1705278

DIBP REFERENCE(S):  BCC2010/210500

MEMBER:Kira Raif

DATE:25 July 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 886 visa:

·cl. 886.222(3)(a) of Schedule 2 to the Regulations; and

Statement made on 25 July 2018 at 3:58pm

CATCHWORDS
Migration – Skilled (Residence) (Class VB) visa – Subclass 886 (Skilled – Sponsored) – Evidence of relevant sponsorship – Sponsorship not lodged at specified address – Australian and China police certificates provided – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 886.222

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 on 22 December 2015 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of China born in January 1987. He applied for the visa on 24 May 2010. The delegate refused to grant the visa because the applicant did not satisfy cl.886.222 of Schedule 2 to the Regulations because the applicant had not been nominated or sponsored in accordance with that provision. The applicant seeks review of the delegate’s decision.

3. The applicant requested the Tribunal to include his partner and child in his application for review. The applicant explained o the Tribunal that he got married in 2013, before the primary decision was made and he ‘intended’ to include his partner and child in the primary application but he was ‘not allowed’ to do that. The applicant confirmed that his partner and child were not included in the primary application and there was no decision in relation to them. As there is no AAT-reviewable decision in relation to the spouse and child, the Tribunal has no jurisdiction in relation to partner and child.

4. The applicant appeared before the Tribunal on 25 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent. 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, Class VB contained three subclasses: 885, 886 and 887. The completed application form indicates that the relevant subclass in this case is Subclass 886, the criteria for which are set out in Part 886 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

6. Clause 886.222 relevantly requires an applicant to be nominated by a State or Territory government agency or sponsored by another person.

   Is the sponsorship or nomination requirement met?

7. The applicant provided to the Tribunal a copy of the primary decision. It indicates that the applicant made the application on the basis of meeting the criteria for the grant of the Subclass 886 visa. The delegate found that the applicant did not meet cl. 886.222 because the applicant failed to provide evidence of the relevant sponsorship. The delegate wrote to the applicant requesting evidence of sponsorship but the primary decision record indicates the applicant did not provide evidence of having been nominated or sponsored

8. The Tribunal wrote to the applicant requesting him to provide evidence of the sponsorship. The applicant did so on the evening of 24 July, the day before the scheduled hearing. It is inexplicable that the applicant, who was represented in this application by a registered migration agent, chose to provide the requested documents the night before the hearing and over a year after his primary application was refused.

9. The Tribunal acknowledges that the applicant has now provided to the Tribunal form 1277 signed by Mr Zhu Hua Wang. The applicant presented a notarised relationship certificate confirming that Mr Wang is his uncle. Mr Wang was born in July 1961 and is over the age of 18. A copy of his passport has been presented to the Tribunal and the Tribunal is satisfied he is an Australian citizen. The applicant presented to the Tribunal copies of Mr Wang’s drivers license, Medicare card, taxation documents, bank statements, council rate notices and other evidence of his residence in Australia. The sponsor’s movement records show that he has been living in Australia for a number of years with only brief visits overseas. The Tribunal is satisfied that Mr Wang is usually resident in Australia. The sponsor is the uncle of the applicant. The Tribunal finds that the applicant meets the requirements of cl. 886.222(3)(a). However, the Tribunal is mindful that for the purpose of paragraph (b), the sponsorship must be made by lodging the internet form or by posting or delivering the form at a specified address. This has not been done in this case and for that reason, the Tribunal does not make a finding in relation to cl. 886.222(3)(b).

   Does the applicant meet PIC 4001?

10. The delegate also noted that the applicant failed to provide police certificates from Australia and China for the purpose of PIC 4001 and the delegate was not satisfied the applicant met that requirement.

11. The applicant provided to the Tribunal the current Australian and Chinese police certificates. These show no record of criminal convictions. However, as other considerations may be relevant to the assessment of PIC 4001, the Tribunal considers the Department to be best placed to conduct the necessary inquiries.

    decision

12. The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 886 visa:

    ·cl. 886.222(3)(a) of Schedule 2 to the Regulations; and

    Kira Raif
    Senior Member