Leung (Migration)

[2017] AATA 2567

Leung (Migration) [2017] AATA 2567 (27 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jacky Pin Leung

VISA APPLICANTS:  Ms Chunzhou Chen
Mr Chensiyuan Dong

CASE NUMBER:  1619301

DIBP REFERENCE(S):  BCC2015/3788314

MEMBER:Russell Matheson

DATE:27 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the directions. The first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·Cl.309.222 of Schedule 2 to the Regulations.

The second named visa applicant meets the following criteria:

·cl.309.222 of Schedule 2 to the Regulations.

Statement made on 27 November 2017 at 8:07am

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Reasonable attempts to obtain criminal history

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.20KB, Schedule 2, cl 309.222

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 Immigration on 8 November 2016 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the visa applicant) is a 45 year old national of China. She applied for the visa on 10 December 2015 on the basis of their relationship with their sponsor, the review applicant. The delegate refused to grant the visa on 8 November 2016.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the sponsor requirement’s as stipulated in Regulation 1.20KB (11),(12) of the Migration Regulations 1994. Consequently as the sponsorship has been refused and the sponsor does not meet the legal requirements of subclause 309.222 of Schedule 2 to the Regulations because the sponsor failed to provide a police check within a reasonable time on request from the Department.

4. The delegate made the decision on the basis that evidence of criminal history or documentary evidence or sentencing remarks or court reports were not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations). The sponsor (review applicant) failed to provide the requested penal clearance allowing for the sponsorship to be refused.

5. The sponsor (review applicant) appeared before the Tribunal on 21 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant.

6. The review applicant was represented in relation to the review by his registered migration agent.

7. The sponsor(review applicant) has provided to the Tribunal the following document’s;

   ·    Judgement of the Peoples Court relating to Mr Leung’s conviction

   ·    Evidence of other attempts to obtain a Chinese police clearance

   ·    Statutory declaration of Mr Leung in relation to a “registrable offence”

   ·    Translation of an explanatory document from the Guangzhou Notary Public office; “How to notarise a Certificate of No Criminal Conviction”.

   ·    Translation of an explanatory document from the Guangzhou Public Security Agency; “Regulations on Application for Certificate of No Criminal Conviction.”

8. Based on the documentation the Tribunal is satisfied that the sponsor does not have any outstanding convictions or charges for registrable or violent offences and has made all possible attempts to obtain a police check from Chinese authorities. As such, approval of the sponsorship is not prevented by r.1.20KB(2) or (3).

9. The Tribunal is satisfied that the sponsor has made reasonable attempts to obtain his criminal history and has offered a reasonable explanation as to why he could not obtain the documentation and the circumstances surrounding his incarceration in China.

10. In light of the new evidence presented by the sponsor, the Tribunal has concluded that the matter should be remitted for reconsideration.

11. Tribunal is satisfied that approval of the sponsorship is not prevented by Regulation 1.20KB. Therefore meets cl.309.222 of Schedule 2 of the Regulations.

12. 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 309 visa.

    DECISION

13. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 visa:

    ·cl.309.222 of Schedule 2 to the Regulations.

    The secondary visa applicant meets the following criteria

    ·cl.309.222 of schedule 2 to the Regulations.

    Russell Matheson
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long‑term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).