Kweon (Migration)

[2018] AATA 658

Kweon (Migration) [2018] AATA 658 (15 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Kyoungsuk Kweon
Miss Yubin Seo
Miss Ye Eun Seo

CASE NUMBER:  1621446

DIBP REFERENCE(S):  CLF2016/20728

MEMBER:Michael Cooke

DATE:15 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·cl.820.225 of Schedule 2 to the Regulations

·cl.820.324 of Schedule 2 to the Regulations

Statement made on 15 March 2018 at 12:40pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 – Sponsor – Applicant’s second partner– Secondary visa applicants – Applicant’s children – Authority to migrate permanently to Australia – No evidence that secondary visa applicants were abducted – Australian Divorce Order – Confirms children to live with the mother in Australia

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 820.225, 820.324

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 12 December 2016 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) applied for the visa on 5 March 2014 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cll.820.225 and 820.324 because the primary applicant did not establish that her secondary applicant children had authority to migrate permanently to Australia and thus she did not satisfy PIC 4015 and 4017 of the Regulations.

4. The applicants appeared before the Tribunal on 23 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the primary applicant can establish that her secondary applicant children had authority to migrate permanently to Australia and thus she satisfies PIC 4015 and 4017 of the Regulations for the purposes of Subclass 820. PIC 4015 and 4017 relevantly required the delegate to be satisfied either that the law of the children's home country permitted their removal, or that each person who could lawfully determine where the children were to live consented to the grant of the visa. The applicant had moved to Australia and later remarried. She was subsequently sponsored (along with her children) to live in Australia by her sponsoring partner.

   The Hearing

8. The Tribunal informed the applicant and sponsor that the refusal was to do with the secondary visa applicants (her children) and their right to live permanently in Australia as part of a Partner visa application. The Tribunal then read out the Public Interest Criteria for the edification of the witnesses and explained its significance. It pointed out that the issue essentially was the biological father consenting in law to the removal of the children from South Korea and their moving permanently to Australia. The children were at time of application and decision under the age of majority. Originally the applicant had removed herself and the children to Australia. She had subsequently remarried in Australia to the sponsor.

9. The applicant agreed that she divorced under Australian law. The Tribunal asked the applicant whether she had a document from the South Korean authorities allowing her to remove the children to Australia permanently. She said yes she did have it.  She then produced two freshly minted South Korean passports. The Tribunal asked her to evidence where the document allowed her to remove the children. The representative then claimed that the stamp on the passport allowed that to happen. The Tribunal then alerted them to evidence that the applicant needed to prove they could be removed. The passport were both freshly produced the Tribunal observed that there was no evidence before it of an Interpol alert suggesting the children had been illegally removed. The Tribunal asked them if they were suggesting by the fact that they had two freshly minted passports for the children that they had been no illegal conduct. The applicant answered yes. Had the applicant been to the South Korean authorities to secure a document confirming their right to be removed? Did the passports indicate they could be removed?

10. The applicant was asked whether she need more time to find such a document. She insisted that her former husband had consented to the removal. There was no document but her ex-husband took them to the airport. Prior to the divorce he visited Sydney 3 times before finalising the divorce. The Tribunal said it was only interested in documents. Did she understand? She said she did. She suggested she need to make further enquiries. The Tribunal informed her that the delegate did not disbelieve her but also wanted documents. It was not normally for a country to allow its children to leave permanently without a custody document. Why, she was asked, was she allowed to leave with them and what happened at the departures gate that day? The Tribunal elaborated various scenarios. She said they asked her no particular questions she produced the passports and as a parent of the children there was no problem such as an alert or suspicion of her motive in travelling with the children. She indicated in the negative.

11. The Tribunal then elaborated the type of official correspondence it required to satisfy it that the removal was legal. Either a letter on South Korean Government letterhead authorising the removal or a statutory declaration/affidavit from her former husband probably stamped by the South Korean Family Court. The Tribunal would allow her further time to provide the information to the Tribunal. There was no evidence that she had abducted the children or that their exit from South Korea had been impeded.

12. Following the hearing the primary applicant has provided further information through her lawyer representative. The first piece of information is a document addressed to the AAT from the Consulate General of the Republic of Korea in which is stated that the secondary visa applicants “departed the Republic of Korea holding valid Korean passports without any pending criminal issues in 2011” (T1, f.67).

13. The Tribunal notes that the first named visa applicant and the biological father of the secondary visa applicants were divorced under Australian law. The second document is a copy of the Australian Divorce Application form filed on January 7 2014 and signed off by the applicant as required and by way of affidavit. Within this document is outlined the custody arrangements for the secondary visa applicants and which have been agreed to by the biological parents. In brief, the children are to continue to live with their mother in Australia whilst their father enjoys visitation rights. These arrangements are further confirmed by the Divorce Order which at paragraph 5 of the document indicates that ‘proper arrangements in all the circumstances have been made for the care, welfare and development of the children’ and which were outlined in outlined in the Application for Divorce document on page 5 (T1, f.72).

14. The additional information has satisfied the Tribunal that the first named visa applicant now meets PIC 4015 and 4017.

15. The Tribunal finds that as a result of this finding the first named visa applicant meets cll.820.225 and 820.324 of the Regulations.

16. 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 820 visa.

    DECISION

17. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    ·cl.820.225 of Schedule 2 to the Regulations

    ·cl.820.324 of Schedule 2 to the Regulations

    Michael Cooke
    Senior Member