Yang (Migration)

[2023] AATA 2706

Yang (Migration) [2023] AATA 2706 (7 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Wenhui Yang

VISA APPLICANT:  Ms Xiufang Ma

CASE NUMBER:  2306666

HOME AFFAIRS REFERENCE(S):          OSF2011/025450

MEMBER:Jane Marquard

DATE:7 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 114 (Aged Dependent Relative) visa:

·cl 114.222 of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 07 July 2023 at 9:37am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa –114 (Aged Dependent Relative) – an updated Form 40 was provided – at the time of decision the sponsorship is still in force –decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, r 1.03, Schedule 2, cls 114.212, 114.222

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 Home Affairs on 9 May 2023 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND TO THE REVIEW

2. The visa applicant is a 77-year-old woman from Shanghai in the People’s Republic of China (China).

3. She applied to the Department of Home Affairs (the Department) for the Other Family (Migrant) (Class BO) visa on 9 June 2011. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 114 visa which requires the primary visa applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen.

4. The applicant claims that she is an Aged Dependent Relative of the review applicant, Wenhui Yang.

5. The criteria for a Subclass 114 visa are set out in Part 114 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.114.222 of Schedule 2 to the Regulations which requires that at the time of decision sponsorship is still in force.

6. The delegate of the Department refused to grant the visa on the basis that cl 114.222 was not met.

7. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal). No hearing was necessary in this matter as the Tribunal was able to find in favour of the applicant pursuant to s 360 (2)(a) of the Act.

   RELEVANT LAW

8. Clause 114.222 of Schedule 2 to the Regulations provides:

   114.222
   The sponsorship referred to in clause 114.212 has been approved by the Minister and is still in force.

9. Clause 114.212 of Schedule 2 to the Regulations provides:

   114.212
   (1) The applicant is sponsored:
   (a) if the Australian relative has turned 18 and is a settled Australian citizen, a
   settled Australian permanent resident or a settled eligible New Zealand citizen — by the
   Australian relative; or
   (b) by the spouse or de facto partner of the Australian relative, if the spouse or de facto
   partner :
   (i) cohabits with the Australian relative; and
   (ii) is a settled Australian citizen, a settled Australian permanent resident or a
   settled eligible New Zealand citizen; and
   (iii) has turned 18.
   (2) In this clause, the Australian relative means the person mentioned in clause 114.211 of whom the applicant is an aged dependent relative.

   FINDINGS AND REASONS

10. At the time of lodgement of the application (9 June 2011), the applicant provided a Form 40 titled ‘Sponsorship for Migration to Australia’ in which Wenhui Yang was declared to be the sponsor of the visa applicant, Xiufang Ma.

11. Clause 114.212 requires that at the time of application the visa applicant is sponsored by the ‘settled’ Australian relative who has turned 18. The ‘Australian relative’ must be an Australian citizen, permanent resident or eligible New Zealand citizen. The terms ‘settled’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

12. The visa application was made on the basis that the visa applicant is the aged dependent relative of Wenhui Yang who the visa applicant claims is her Australian relative. Relative is defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents). Wenhui Yang is the review applicant’s daughter as demonstrated by the notarial certificate provided. She is an Australian citizen over the age of 18, as demonstrated by her passport, and settled as demonstrated by migration records. She arrived in Australia in 2002 and has been a citizen since 2007.

13. The Tribunal is satisfied that the visa applicant is sponsored by Wenhui Yang, an Australian relative mentioned in cl 114.211 of Schedule 2 to the Regulations. The Tribunal is satisfied that Wenhui Yang, the sponsor, is over 18 years old. The Tribunal is satisfied that Wenhui Yang, the sponsor, is a settled Australian citizen.

14. Therefore at the time of application the visa applicant was sponsored in accordance with the regulations and therefore satisfies cl 114.212.

15. At the time of this decision the sponsorship must be in force: cl 114.222.

16. Given the age of the application, the Department requested that the applicant provide a new Form 40 in order to establish that the sponsorship remained in force at the time of decision. Requests were made on 21 November 2022 and 10 February 2023. On 21 February 2023 the applicant sent an email to the Department providing updated passport details and requesting if any further information was required. No updated Form 40 was provided.

17. The Department was not satisfied that the sponsorship remained in force at the time of decision and was not satisfied therefore that the applicant met cl 114.222 of Schedule 2 to the Regulations.

18. An updated Form 40 dated 9 May 2023 was provided to the Tribunal on 15 Ma 2023. The same details as in the first Form 40 in regard to sponsorship were provided.

19. The Tribunal is satisfied therefore that at the time of decision the sponsorship is still in force. Therefore, the applicant meets cl 114.222 of Schedule 2 to the Regulations.

    CONCLUDING PARAGRAPHS

20. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 114 visa.

    DECISION

21. The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 114 (Aged Dependent Relative) visa:

    ·cl 114.222 of Schedule 2 to the Migration Regulations 1994 (Cth).

    Jane Marquard
    Member