Montipolca (Migration) [2023] AATA 439 (6 March 2023)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Mr Edrick Manuel Sarmiento Montipolca
CASE NUMBER:	2216987
HOME AFFAIRS REFERENCE(S):	BCC2020/2689622 
MEMBER:	Justin Meyer
DATE:	6 March 2023
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 101 visa:
•	cl 101.222 of Schedule 2 to the Regulations

Statement made on 6 March 2023 at 5:21pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – sponsorship requirements – sponsorship in force at time of decision – cancellation of sponsor’s own visa set aside – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1959 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cls 101.212, 101.222
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 to refuse to grant the applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 11 March 2020. The delegate refused to grant the visa on 10 November 2022.
2.  	The delegate made the decision on the basis that: 
Regulation 101.222 requires the sponsorship in regulation 101.212 to still be in force at the time the decision is made on the application.

Regulation 101.212 requires the applicant to be sponsored by a person over the age of 18 who is an Australian citizen, permanent resident, or Eligible New Zealand citizen and the applicant is a dependent child of that person.

The sponsor was granted a Partner (subclass 100) visa on 1 September 2016. As part of that application, the sponsor declared that they had no dependent children. At the time the Child (subclass 101) visa application was lodged the applicant met 101.212 as the sponsor held a permanent resident visa.

However, on 11 August 2022 the sponsor’s Partner (subclass 100) visa was cancelled.

On 12 September 2022 the Department wrote to the applicant with an invitation to comment on the cancellation of the sponsor’s visa.

On 13 September 2022 a response was received from the authorised contact in regard to the sponsor lodging an appeal with the Administrative Appeals Tribunal (AAT). This response included evidence that the sponsor has lodged an appeal of the decision to cancel the Partner (subclass 100) visa with the AAT.

On 10 October 2022 the Department wrote to the applicant with another invitation to
comment on the cancellation of the sponsor’s visa.

On 31 October 2022 a response was received from the authorised contact in regards to the sponsor lodging an appeal with the Administrative Appeals Tribunal (AAT). This response included evidence of the sponsor’s hearing with the AAT.

While the sponsor is appealing the decision to cancel the Partner (subclass 100) visa with the AAT, this does not alter the fact that the sponsor does not currently hold a permanent resident visa. Therefore, as the sponsor no longer holds a permanent resident visa for Australia and they are not an Australian Citizen or eligible New Zealand Citizen, the applicant does not meet regulation 101.222.

3.  	The applicant wrote to the Tribunal on 3 December 2022 stating that the cancellation:
was successfully appealed to the AAT (case no. 2211956) and the decision by the Department to cancel her visa was “set aside” and substituted with a decision not to cancel her visa on 23-Nov-2022 (we have also provided this set aside decision record for your convenience). Therefore, since the sponsor’s visa cancellation (under section 109 of Act) was set aside, then in turn pursuant to Sect 114 of the Act, the sponsor’s visa is taken to have “never been cancelled.” We have also provided a copy of the sponsor’s “Visa Entitlement Verification Online (VEVO) - Visa Details Check” confirming the sponsor’s now permanent residency in Australia.
Since the eventual permanent visa (Child (Migrant) (Class AH)) grant of the applicant clearly depends on the outcome of this case, we wish to make an urgent request so that he may resume his schooling in Australia soon as he is only currently just on a Visitor (subclass 600) visa and applying for a Bridging visa A (BVA) with regards to this refusal appeal. 
4.  	The Tribunal has confirmed that on 23 November 2022,in the matter of 2211956 the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 100 (Spouse) visa. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.
5.  	In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.
decision
6.  	The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 101 visa:
•	cl 101.222 of Schedule 2 to the Regulations

Justin Meyer
Member