Yang (Migration)

This matter concerned an application for review by Xiufang Ma of a decision by a delegate of the Minister for Home Affairs to refuse her an Other Family (Migrant) (Class BO) visa, specifically a Subclass 114 (Aged Dependent Relative) visa. The applicant, a 77-year-old woman from China, had applied for the visa in 2011. The delegate's refusal was based on the grounds that clause 114.222 of Schedule 2 to the Migration Regulations 1994 (Cth) had not been met. The review was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the sponsorship requirement under clause 114.222 of the Migration Regulations 1994 had been satisfied. This clause mandates that the sponsorship referred to in clause 114.212 must have been approved by the Minister and must still be in force at the time of the decision. Clause 114.212 requires the applicant to be sponsored by a settled Australian citizen, permanent resident, or eligible New Zealand citizen who is 18 years or older, or by their spouse or de facto partner under specific conditions.

The Tribunal found that an updated Form 40, declaring Wenhui Yang as the sponsor, had been provided. Crucially, the Tribunal determined that at the time of the decision under review, the sponsorship was still in force. Consequently, the Tribunal concluded that the criterion under clause 114.222 had been met.

As a result of this finding, the Tribunal remitted the application for the Subclass 114 visa back to the Minister for reconsideration of the remaining criteria. The Tribunal directed that the visa applicant was to be considered as meeting the criterion in clause 114.222 of Schedule 2 to the Migration Regulations 1994.