ZHAO (Migration)

[2023] AATA 3480

ZHAO (Migration) [2023] AATA 3480 (29 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr DOMINIC MING ZHE ZHAO

VISA APPLICANTS:  Mrs Qiuyi Zhao
Mr CHENG ZHU
Mr RUN TONG ZHU

REPRESENTATIVE:  Mr Christopher Hugh Levingston

CASE NUMBER:  2304306

HOME AFFAIRS REFERENCE(S):          OSF2013/093657

MEMBER:SM Michael Cooke

DATE:29 August 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:

·cl 116.212 of Schedule 2 to the Regulations

·cl 116.222 of Schedule 2 to the Regulations

Statement made on 29 August 2023 at 1:11pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– sponsorship requirements met – time of decision the applicant continues to be sponsored by original sponsor – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulations 1994, rr 1.03, 1.15, Schedule 1, Schedule 2, cls 116.212, 116.222

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 28 February 2023 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 3 December 2013. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 116. 212 and cl 116. 222.

3. The applicant (Qiuyi ZHAO) applied for the grant of a Carer (subclass 116) visa on the basis of providing assistance to her sponsor, Dominic Ming Zhe ZHAO to care for the person with a medical condition (PWMC) – Mr Lehua ZHAO – an Australian citizen. The Department approved this sponsorship.

4. The delegate has subsequently refused to grant the visas on the basis that cl 116.222 was not met because on review of the refusal of the visa:

   “the AAT determined (AAT 1935514) that Lehua ZHAO was the Australian Relative and not the sponsor, Dominic Ming Zhe ZHAO, therefore, the applicant is not sponsored by her Australian Relative”.

5. Thus, the delegate was not satisfied that the sponsorship (which was found to meet the requirements of clause 116.212 at time of application) remained in force at time of decision.

6. The review applicant’s representative has contacted the Tribunal and presented a short submission as follows:

   The matter before the Tribunal

   In this case the Applicant is seeking a review of the decision made on 28 February 2023 to the following effect:

   “At the time of the lodgement of this application, 3 December 2013, the Applicant provided a Form 40 Sponsorship for migration to Australia in which Dominic Zhao declared himself to be the sponsor of the applicant. Dominic Ming Zhe Zhao signed the form 40 on 29 October 2013.

   The PWMC Lehua Zhao is not the sponsor of this visa application.

   It is stated in clause 116.212 that the applicant must be sponsored by Her Australian Relative. As the AAT determined that Lehua Zhao was the Australian Relative and not the sponsor, Dominic Ming Zhe Zhao therefore the applicant is not sponsored by her Australian Relative.

   Overall, I am not satisfied that the sponsorship, which was found to meet the requirements of Clause 116.212 at the time of application, remains in force at the time of decision.

   Consequently, the applicant does not meet Clause 116.222 in Schedule 2 of the Migration regulations.” (see top of page 3 of decision record of 28 February 2023.)

   Submission

   Having regard to the findings of the Case Officer I have had a fresh Form 40 prepared to meet the time of decision criterion as well as evidence of the appointment of Mr Dominic Ming Zhe Zhao as the guardian of his Father by NCAT.

   It is on that basis that we request that the Tribunal consider making a decision “on the papers” to the effect that the Tribunal finds that the applicant meets the requirements of Clauses 116.212 and 116.222 in Schedule 2 of the Migration regulations.

7. The Tribunal has acceded to the request to make the decision on this review ‘on the papers’ without recourse to a further hearing.

8. The review applicant was represented in relation to the review.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the sponsorship, at time of decision, remains in force at the time of decision.

    SPONSORSHIP

    Are the sponsorship requirements met?

11. Clause 116.212 requires that at the time of application the visa applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. ‘Spouse’ is defined in reg 1.15A (for visa applications made before 1 July 2009) and s 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s 5CB of the Act).

    Findings and reasons in relation to:

    ·whether the visa applicant is sponsored by either the Australian relative as defined or their spouse / de facto partner 

12. The visa applicant was sponsored by her brother - the sponsor, Mr Dominic Ming Zhe Zhao.

    ·whether the sponsor has turned 18

13. The sponsor has turned 18.

    ·if the sponsor is the spouse / de facto partner of the Australian relative – whether the sponsor cohabits with the Australian relative, and is an Australian citizen, permanent resident or eligible New Zealand citizen.

14. The sponsor is not the spouse / de facto partner of the Australian relative.

15. Therefore, at the time of application, the visa applicant was sponsored as required by the legislation and satisfies cl 116.212.

16. At time of decision the applicant continues to be sponsored by original sponsor (Dominic Ming Zhe Zhao). The applicant’s representative has confirmed this. The representative advises that the sponsor is also the NCAT appointed guardian of the PWMC – Mr Lehua Zhao.

17. 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 116 visa.

    DECISION

18. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:

    ·cl 116.212 of Schedule 2 to the Regulations

    · cl 116.222 of Schedule 2 to the Regulations

    Michael Cooke
    Senior Member