Pan (Migration)

[2021] AATA 4509

Pan (Migration) [2021] AATA 4509 (10 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pong Kwok Pan

CASE NUMBER:  2014423

HOME AFFAIRS REFERENCE(S):          CLF2019/35590

MEMBER:Russell Matheson

DATE:10 November 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl. 802.226 of Schedule 2 to the Regulations.

Statement made on 10 November 2021 at 3:04pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – police clearance certificates – sponsorship approval – certificate forwarded to the Department from Hong Kong authorities – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.215, 802.226; r 1.20

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 Home Affairs on 23 September 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Hong Kong, born in December 2007. He applied for the visa on 11 September 2019. The delegate refused to grant the visa on 23 September 2020 on the basis that the applicant did not meet cl. 802.226 because the sponsor had not provided the relevant police clearance certificates. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

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

   Relevant law

5. The criteria for a Child (Residence) (Class BT) visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

6. Clause 802.226 requires that the sponsorship has been approved by the Minister. Regulation 1.20KB limits the discretion to approve sponsorships. Essentially, it relates to sponsors who have been charged with, or convicted of, registrable offences. Regulation 1.20KB applies if the primary or secondary applicant is under 18 at the time of application.

   Sponsorship

7. In the present case the visa application is not supported by a letter of support from a State or Territory government welfare authority and therefore the applicant does not meet cl.802.215(a) and must meet the requirements in cl.802.215(b). Clause 802.215(b) requires that, at the time of application, the applicant is sponsored by a person who has turned 18, is an Australian citizen, permanent visa holder or an eligible New Zealand citizen. The sponsor must be either the person for whom the applicant is their dependent child, or a cohabiting spouse or de facto partner of that person.  At the time of decision, this sponsorship must have been approved and still be in force: cl.802.226.

8. Sub-regulations 1.20KB (11) and (12) say:

   Evidence of charge or conviction

   (11)      To determine whether a sponsor, or the spouse or de facto partner of a sponsor, has been charged with, or convicted of, a registrable offence, the Minister may request the sponsor, or the spouse or de facto partner of the sponsor, to provide a police check from:

   (a)      a jurisdiction in Australia specified in the request; or

   (b)      a country, specified in the request, in which the sponsor or the spouse or de facto partner has lived for a period, or a total period, of at least 12 months.

   (12)     In addition to other reasons set out in this regulation for refusing to approve a sponsorship, the Minister may refuse to approve the sponsorship of all applicants for a visa if:

   (a)      the Minister has requested a police check for the sponsor or the sponsor’s spouse or de facto partner; and

   (b)      the sponsor or the sponsor’s spouse or de facto partner does not provide the police check within a reasonable time.

   Application details

9. In response to question 34 of the Form 40CH - Sponsorship for a child to migrate to Australia, the sponsor advised that she had lived in the following countries for a cumulative period of 12 months or more, over the last 10 years:

   ·Australia from February 2018 to present; and

   ·Hong Kong from September 2009 to March 2015.

10. On 15 May 2020 and 16 June 2020, the Department wrote to the sponsor and requested the following documents to be provided within 28 days (the prescribed period):

    ·An Australian Federal Police (AFP) National Police Certificate for Pui Shan Ng; and

    ·Police clearance from each country where Pui Shan Ng has lived for a total of 12 months or more in the last 10 years (calculated accumulatively).

11. The sponsor did not provide AFP police clearances or Hong Kong police clearances to the Department for Pui Shan Ng within the prescribed period. These certificates were originally requested on 15 May 2020 and subsequently requested on 16 June 2020. As a reasonable time had passed and the police certificates had not been provided, the sponsor had not provided evidence about whether or not she has been charged with, or convicted of, a registrable offence. Therefore, the delegate was not satisfied the sponsor met the requirements of r.1.20KB.

    Should the sponsorship be approved?

12. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  the applicant made the application on the basis of being a dependent child of his mother and was sponsored by his mother Pui Shan Ng. As the applicant was born in December 2007, the Tribunal finds that he is under the age of 18 at the time of application and at the time of this decision.

13. The sponsor provided an  Australian police clearance certificate to the Tribunal on 24 September 2020 which shows no adverse outcomes. On 13 September 2021, the sponsor provided a written submission through her registered migration agent to the Tribunal detailing her application and evidence of obtaining her Hong Kong police clearance certificate. The sponsor did not receive a copy of the certificate which was forwarded directly to the Department of Home Affairs postal address in Western Australia by the Hong Kong Police. A digital copy of the Hong Kong police clearance certificate was received by the Department on 23 January 2021.

14. On 4 November 2021, the Tribunal requested the Department to provide a copy of the certificate via email. On 9 November 2021, the Tribunal received a copy of the Hong Kong certificate (Ref CNCC28184/20 and Hong Kong Passport [Number]) indicating in the records held by the Hong Kong Police Force that the sponsor Ms Pui Shan Ng appeared before a criminal court on 16 December 2011 charged and was convicted of theft (S.9 Cap.210) and fined. On the evidence presented the Tribunal accepts that the sponsor has been convicted of a minor offence and does not have a conviction that resulted in a prison sentence of 12 months or more. The Tribunal has not gone on to consider any other issues relating to the application or sponsorship declarations in the Form 40CH sponsorship for a child to migrate to Australia.  

15. Having regard to that evidence, the Tribunal is satisfied that the sponsor has not been convicted of registrable offences for the purpose of visa sponsorship. There is nothing before the Tribunal to suggest that the sponsor has been charged with such offences. The Tribunal finds that the limitations set out in r.1.20KB do not apply in this case.

16. There does not appear to be any other reason why the sponsorship should not be approved. The Tribunal finds that the sponsorship is to be approved and the applicant meets cl. 802.226.

    Conclusion

17. On the basis of the above findings, the applicant meets cl. 802.226.

    DECISION

18. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl.802.226 of Schedule 2 to the Regulations.

    Russell Matheson
    Member