Jim (Migration)

[2020] AATA 5341

Jim (Migration) [2020] AATA 5341 (14 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Shan Shan Jim

VISA APPLICANT:  Miss Sum Yin Stella Tse

CASE NUMBER:  1917473

HOME AFFAIRS REFERENCE(S):          2018009799 OSF2018/009799

MEMBER:Peter Smith

DATE:14 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 101 (Child) visa:

· cl.101.223 of Schedule 2 to the Regulations; and

·     Public Interest Criteria 4009 of Schedule 4 to the Regulations.

Statement made on 14 October 2020 at 3:01pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – intention to live permanently in Australia – residential tenancy agreement in Australia – purchase of property – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 101.223; Schedule 4, PIC 4009

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 (the Minister) on 30 April 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (Cth).

2. The applicant, a citizen of the Peoples Republic of China, is a young child who, on 24 August 2018, applied to the Minister for the grant of a Child (Migrant) (Class AH) visa.  The applicant was born in Hong Kong in October 2017. 

3. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan). In the present case, claims have only been in respect of Subclass 101 (Child). The criteria for the grant of a Subclass 101 (Child) visa is set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicant’s biological mother, Shan Shan Jim is her sponsor.  The applicant’s biological father is Man Yeung Tse.  He is married to the sponsor.  On 9 November 2016, Ms Jim and Mr Tse were each granted a Skilled Nominated (Permanent) (Class SN) (subclass 190) visa. The conditions attached to their visas required them to enter Australia anytime before 1 August 2017 but not after 9 November 2021.  They both entered Australia on 8 April 2017 and despite being permanent visa holders, they returned to Hong Kong on 16 April 2017 and remained living in Hong Kong until 13 June 2019.

5. An application for the grant of the visa has been made by the applicant because she satisfied the validity requirements for the Subclass 101 Child visa.  However, the applicant must at the time of decision also meet the requirements of cl.101.223 which requires the applicant to meet Public Interest Criteria (PIC) 4001, 4002, 4003, 4007, 4009, 4020 and 4021. 

6. The delegate considered whether at the time of decision the applicant met the requirements of cl.101.223 and whether she satisfied PIC4009 which requires the applicant intends to live permanently in Australia.

7. To assist her in considering whether at the time of decision, the applicant met the requirements of cl.101.223 and satisfied PIC4009, the delegate wrote to the applicant and her sponsor on three separate occasions and requested that they provide the Department of Home Affairs (the Department) with evidence or information that they intend to relocate and evidence and information that they intended to live permanently in Australia.  No evidence or information was ever provided to the Department by the applicant and her sponsor.

8. As no evidence or information has been provided to the Department, the delegate was not at the time of decision satisfied that the applicant met the requirements of cl.101.223 and satisfied PIC4009, and therefore decided to refuse to grant the applicant a Child (Migrant) (Class AH) (Subclass 101) Child visa.

9. On 1 July 2019, the applicant and her sponsor made an application to the Tribunal for review of the delegate’s decision to refuse to grant the applicant the visa.  The delegate’s Decision Record of 30 April 2019 was provided as an attachment to the application for review.

10. The Tribunal notes that it has received further evidence and information from the applicant and her sponsor that is materially relevant to the question of whether at the time of decision the applicant meets the requirements of cl.101.223 and satisfies PIC4009.  The Tribunal has determined that the evidence and information it has received, is favourable to the applicant’s case.  Accordingly, the Tribunal has determined that the application should be determined on the papers without the need for a hearing. 

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

    QUESTION FOR THE TRIBUNAL TO DETERMINE

12. In the present case, the question for the Tribunal to determine is whether at the time of decision, the applicant meets the requirement of cl.101.223 and satisfies PIC4009 which requires that the applicant and her sponsor intend to live in Australia permanently.  In determining this question, the Tribunal has had regard to the material on the Department’s file and regard to the material on its own file.

    CONSIDERATION OF THE EVIDENCE

13. The Tribunal has considered the departments international movement records relating to the sponsor. The movement records show that the sponsor first arrived and entered Australia on 8 April 2017.  The records show that the sponsor departed Australia on 16 April 2017 to travel to Hong Kong.  The records show that the sponsor did not return to Australia until 13 June 2019 notwithstanding that at the time she held an Australian permanent visa.  The time from when the sponsor departed Australia and the time when she returned to Australia is a substantial period of time, and while it does raise real concerns about the motives of the applicant and her sponsor at the time, recent events that have occurred since 13 June 2019 overcome any concerns the Tribunal may have had.

14. The events that have occurred since 13 June 2019 are discussed below.  The Tribunal considers the events to be materially relevant to the question of whether at the time of decision, the applicant meets the requirement of cl.101.223 and satisfies PIC4009.  The Tribunal considers that the events which are supported by evidence and information indicate that the applicant and her sponsor intend to live in Australia permanently.

15. On 25 June 2019, the applicant’s parents entered into a residential tenancy agreement in which they agreed to pay rent to a real estate agent for a rental property for 12 months commencing on 25 June 2019 and ending on 24 June 2020.  This indicates to the Tribunal that upon their return to Australia, it was the intention of the applicant and her sponsor to stay and establish a home in Australia to live in, which the Tribunal considers to be strong evidence that the applicant and her sponsor intend to live in Australia permanently. 

16. On 25 October 2019, the sponsor exchanged contracts in respect of the purchase of a property in Sydney in which she paid the sum of $850, 000.  Given that the purchase of the property was made relatively quickly after the sponsor returned to Australia, this indicates to the Tribunal that the applicant and her sponsor intend to establish a permanent home in Sydney.  The purchase of the property also strengthens the applicant and her sponsor’s ties to Australia now that they have a substantial property interest in Australia.  The Tribunal considers both factors to be strong evidence that the applicant and her sponsor intend to live in Australia permanently. 

17. When she returned to Australia on 13 June 2019, the sponsor was pregnant with her second child.  The Tribunal notes that the sponsor gave birth to her second child in North Sydney in late November 2019.  This indicates to the Tribunal that the applicant and her sponsor have expanded the size of their family in Australia.  This indicates to the Tribunal that the applicant and her sponsor plan to establish a family unit in Australia.  The Tribunal considers both factors to be strong evidence that the applicant and her sponsor intend to live in Australia permanently. 

    CONCLUSION

18. Having considered all of the evidence and information, the Tribunal is satisfied that at the time of decision the applicant meets the requirements of cl.101.223 and that the applicant satisfies PIC4009.

19. Given the above, the appropriate course is for the Tribunal to remit the application for reconsideration.

    DECISION

20. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl.101.223 of Schedule 2 to the Regulations; and

    ·Public Interest Criteria 4001 of Schedule 4 to the Regulations.

    Peter Smith
    Member