1818210 (Migration)

[2019] AATA 5430

1818210 (Migration) [2019] AATA 5430 (9 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1818210

MEMBER:Margie Bourke

DATE OF DECISION:  9 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·PIC 4017 for the purposes of cl.600.213 of Schedule 2 to the Regulations.

Statement made on 09 September 2019 at 4:46pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – legal permission for child’s removal – consent to grant of visa – evidence of relationship with child – notarial certificate issued by the local Chinese authority – birth certificate not provided – immigration and travel history – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213; Schedule 4, Public Interest Criterion 4017

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 19 June 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 31 May 2018. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.213, which requires the visa applicant to satisfy the Minister that the visa applicant satisfies the public interest criteria 4012, 4017 and 4018.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.213 because the delegate was not satisfied the VISA applicant satisfied the criterion for PIC 4017.

5. The tribunal has considered the information contained in the Department’s decision record stated 19 June 2018. The tribunal has considered the submission from the visa applicant’s representative. The Tribunal has also considered country information in relation to the reliability and purpose of notarial birth certificates and birth certificates in China, and the previous immigration history and application history of both the visa applicant and her parents. After considering all the information available to it, the tribunal is of the view that it can make a decision favourable to the visa applicant without proceeding to a hearing, pursuant to s.360(2) of the Act.

6. The following other written reasons why the Tribunal has concluded that the matter should be remitted to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether cl.600.213 is met.  Cl.600.213(2) requires if the visa applicant has not turned 18 years, the Tribunal must be satisfied that the visa applicant also satisfies public interest criteria 4012, 4017 and 4018. In the Department’s decision record dated 19 June 2018, the delegate found that the visa applicant did not satisfy Public Interest Criterion (PIC) 4017.

8. PIC 4017 requires that the Minister is satisfied of one of the following:- (a) the law of the applicant’s home country permits the removal of the applicant; (b) each person who can lawfully determine where the applicant is to live consents to the grant of the visa; or (c) the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

9. The delegate found the visa applicant did not meet PIC 4017 because the visa applicant had provided a statement issued by the local authority, (a notarial certificate) and not a birth certificate. The delegate stated this could not be accepted as evidence of the claimed relationship with her parents and therefore the delegate found the visa applicant did not meet any of the requirements of PIC 4017.

10. I have considered the notarial certificate and translated copy provided by the visa applicant to the Department. This certificate is dated [in] November 2016, was issued by [a specified] Notary Public Office in Tangshan City, Hebei Province and had the signature of the notary and the seal of the People’s Republic of China on it. The certificate recorded the visa applicant’s name, gender date of birth and identity card number. The certificate recorded the city and province of her birth and her father and mother’s name and their identity card numbers.

11. The visa applicant’s representative submitted that the visa applicant applied for the visitor visa to travel to Australia in the company of both her parents. Records disclose that the visa applicant applied for a visitor visa to travel to Australia in the company of both her parents in 2011 and 2017. In both 2011 and 2017 the Australian authorities granted a visitor visa to both the visa applicant and both her parents. The records further disclose that in 2018, at the time of the application for the visitor visa which is the subject of this review, again both the visa applicants’ parents applied for a visitor visa. The stated purpose for the application for the visitor visa by the three members of the family was because the visa applicant’s sister-in-law was due to have a baby on [date]. Both the visa applicants’ parents were granted a visitor visa, and the visa applicant’s mother came to Australia as the holder of a visitor visa. I assume that the visa applicant’s father remained in China with the visa applicant while her mother travelled to Australia.

12. I have considered information recorded in Immigration and Refugee Board of Canada (8 July 2010), “China: Information contained in birth and notarial certificates”, and the earlier shorter report from 8 April 2004 from the same source. I accept that there is a difference between a birth certificate and a notarial certificate, and the birth certificate provides a greater breadth of information. In 2004 a new version of birth certificates issued by the medical institutions were introduced which had an electronic watermark and barcode to prevent forgeries. Notarial certificates are the form of Chinese documentation used abroad and are processed through notary offices located in cities and in rural county seats. Notarial certificates record births, deaths, marriages, divorce, no criminal record and pre-1981 adoptions. Notarial certificates are secondary evidence of the events they document, and are based on the notary witnessing the evidence of the circumstance certified in the notarial certificate.  The conclusion of the report is that notarial certificates have a presumption of truth within the Chinese legal system. However notarial certificates are accorded little weight by visa officers as they are unverifiable. If there are challenges as to the information recorded in the material certificates visa officers often request DNA testing to confirm the family relationships recorded.

13. I have considered the evidence before me.  Apart from the fact that the visa applicant submitted a notarial certificate, there is no information for me to indicate that that her real certificate is unreliable, or that the familial relationship between the visa applicant and her parents is in question. I accept that notarial certificates are usually provided as a form of Chinese documentation for overseas processes. I accept that notarial certificates are generally accepted as legal documents within the Chinese system. There was no request by the Department for DNA testing to establish the familial relationship between the visa applicant and her parents. I have no information before me to suggest that DNA testing is required, or that the familial relationship is doubted. While I accept that the notarial certificate is not a document that has electronic watermarks and barcodes to prevent forgeries, like the birth certificate, there is no information before me to suggest that the notarial birth certificate is a forgery or contains false information. I accept the information contained in the notarial certificate, that the visa applicant’s parents as recorded are her parents. I accept the notary has certified information provided to him in the notarial certificate.

14. There is no information contained in the Department’s decision record to indicate why there was any doubt about the family relationship between the visa applicant and her parents. The Department had twice previously granted a visitor visa to the visa applicant to travel to Australia with her parents. At the time of refusing the visa applicant a visitor visa, the Department granted a visitor visa to both the visa applicant’s parents. These records indicate that the Department has no concerns about the bona fides of the visa applicant’s parents. These records indicate that the Department has not previously had any concerns that the visa applicant was a member of her parents’ family unit.

15. The Exit - Entry Administrative Law of People’s Republic of China [2012] referred to as The Exit Law, governs the regulations about a citizen of China wishing to exit or enter China. There is nothing specific in the Exit Law which canvasses the prospect of a minor leaving China. Article 4 refers to passports being in issued by the Ministry of Public Security. Article 6 refers to the requirements of identification to be provided when applying for a passport. Article 9 refers to a citizen who wishes to exit or enter China being required to apply for a passport or other travel documents in accordance with the law.

16. Passport USA’s website refers to Chinese national children requiring the consent or permission of both of their parents to depart China. This website refers to children not being allowed to depart China if one parent refuses permission for the child to travel. I have considered that the visa applicant in this review has a Chinese issued passport, and has previously been granted permission by the Chinese authorities to exit and enter China. I have considered that the visa applicant has previously departed China in the company of both her parents, and intended on this occasion when she applied for the visa to again depart China in the company of both her parents, on which basis I am satisfied that she had the permission of both her parents. There is nothing in the evidence before me that indicates that the law of the visa applicant’s home country would not permit the applicant to depart China on a visitor visa to Australia the company of both her parents.

17. I have considered that the visa applicant has not submitted a birth certificate, but has submitted a notarial certificate in relation to her birth. However I am satisfied based on the evidence before me that the notarial certificate records the names of her parents. I am satisfied that the Chinese authorities have issued the visa applicant with a passport and that she has exited and entered China previously. I am satisfied that the Chinese authorities would have assessed the genuineness of the identification information provided before issuing the passport, including the validity of the birth certificate or notarial certificate provided. I accept the information recorded on the notarial certificate provided to the Department in relation to the names of the visa applicant’s parents, and her relationship to them.

18. Based on the fact that the visa applicant had applied for a visitor visa to travel to Australia in the company of both her parents, and the application was supported by both her parents I am satisfied that each person who can lawfully determine where the applicant is to live, her parents, consent to the grant of the visa. (I do note that the visitor visa is a temporary visa when assessing this criterion, so travel rather than live may be the more appropriate term). I am satisfied based on the information contained the notarial birth certificate, and on the basis that the visa applicant has previously travelled in the company of both her parents, and on the basis of the other identification documents that record the name for parents, that the people who have previously been described as the parents and continue to be described as a parent are in fact her parents and are the people who can give her permission to travel.

19. For these reasons I find that the visa applicant meets the requirements of both PIC 4017(a) and (b). As the visa applicant is only required to satisfy the Minister of one of the three requirements of PIC 4017, I am satisfied that she meets the requirements of PIC 4017.

20. Therefore, I am satisfied that the visa applicant meets the requirements of PIC 4017 for the purposes of cl.600.213(2).

    DECISION

21. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·PIC 4017 for the purposes of cl.600.213 of Schedule 2 to the Regulations.

    Margie Bourke
    Member