Qian (Migration)

[2018] AATA 2970

Qian (Migration) [2018] AATA 2970 (2 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Minzhu Qian

VISA APPLICANT:  Miss Xuanlin Qian

CASE NUMBER:  1716468

HOME AFFAIRS REFERENCE(S):           OSF2017/051290

MEMBER:Helena Claringbold

DATE:2 July 2018

PLACE OF DECISION:  Sydney

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

·Public Interest Criteria 4017 and Public Interest Criteria 4018 for the purposes of cl.101.226 of Schedule 2 to the Regulations.

Statement made on 02 July 2018 at 11:54am

CATCHWORDS

Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Law of the applicant’s home country – No compelling reason to believe grant of visa not in best interests of applicant – Matter decided on papers – Child born out of wedlock – Death of biological father – Sponsor the legal guardian of child – Decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, Public Interest Criteria 4017 and 4018, cl 101.226

1. STATEMENT OF DECISION AND REASONS

   APPLICATION FOR REVIEW

2. On 30 December 2016, Miss Xuanlin Qian, the visa applicant, applied for a Subclass 101 (Child) visa.  The applicant was made on the basis that she is the child of Australian citizen, Ms Minzhu Qian, the sponsor and review applicant.

3. On 25 May 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant met Public Interest Criteria 4017 for the purposes of cl.101.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

5. The sponsor requested review of the delegate’s decision and provided the Tribunal with additional information. On the basis of that information, which was previously unavailable to the delegate and as this decision is favourable for the applicant, the Tribunal will decide the matter on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case file and the Tribunal’s case file.

   ISSUE

8. The issue in the present case is whether the applicant can satisfy Public Interest Criteria 4017 and Public Interest Criteria 4018 for the purposes of cl.101.226 of Schedule 2 to the Regulations.

9. Clause 101.226 of Schedule 2 to the Regulations requires that, if the applicant has not turned 18, Public Interest Criteria 4017 and Public Interest Criteria 4018 must be satisfied in relation to the applicant.

10. Public Interest Criteria 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;

    (c)  the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

11. Public Interest Criteria 4018 requires that the Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.

12. The visa applicant was born in 2006 and is an 11 year old girl from Jiangsu province, China. The sponsor, who is the visa applicant’s biological mother, entered Australia in 2011 as the holder of a Subclass 820 partner visa.  The sponsor did not declare the visa applicant on her partner visa application.  She explains that she did not want her ex-husband to know that she had a daughter who was born out of wedlock. The applicant’s birth certificate, records the sponsor as her mother.  Her father is not recorded.

13. In January 2010, the sponsor married to Mr Yejie Wang.  In February 2014, Mr Wang and the sponsor divorced.  There is one child from this marriage who was born in 2010.

14. The visa applicant and the sponsor declared that Mr Bingji Lin is the applicant’s biological father and that he died on 2 June 2010. A death certificate confirms Mr Lin’s death. The sponsor stated that, the visa applicant never met her father and that she lived with her maternal grand-mother up until 2015, when her grandmother migrated to Australian.  

15. The sponsor provided the Tribunal with a notarial certificate translation of the, Paper of Civil Judgement dated 14 July 2017 of the People’s Court of Huishan District, Wuxi City, Jiangsu Province. The judgement recorded that after investigation it has been determined that on ‘November 20, 2006 Qian Minzhu and Bingji Lin commonly gave birth to their daughter Qian Xuanlin’, ‘Lin Bingji has died on June 2, 2010’ and ‘This court holds the opinion that the parents of minors shall be the guardians of minors.  Since Qian Xuanlin’s father Lin Bingji has died, and Qian Minzhu, as Qian Xuanlin’s mother, has the abilities and conditions to act as Qian Xuanlin’s guardian, she shall be Qian Xuanlin’s legal guardian.’

16. As a result of this judgement, the Tribunal is satisfied that the law of the visa applicant’s home country permits the removal of the visa applicant. The Tribunal is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the visa applicant.

17. The applicant therefore satisfies Public Interest Criteria 4017 and Public Interest Criteria 4018 of schedule 2 to the Regulations.

18. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

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

    ·Public Interest Criteria 4017 and Public Interest Criteria 4018 for the purposes of cl.101.226 of Schedule 2 to the Regulations.

    Helena Claringbold
    Member