Song (Migration)

[2021] AATA 3587

Song (Migration) [2021] AATA 3587 (1 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jianjun Song

VISA APPLICANTS:  Mrs Xiulian Sun
Mr Fuli Song

CASE NUMBER:  1907942

HOME AFFAIRS REFERENCE(S):          OSF2015/023316

MEMBER:Hugh Sanderson

DATE:1 September 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Parent (Migrant) (Class AX) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

·cl 103.213 of Schedule 2 to the Regulations.

Statement made on 01 September 2021 at 4:09pm

CATCHWORDS

MIGRATION – Parent (Migrant) (Class AX) visa – Subclass 103 visa – visa applicant met the balance of family test – children identified in the form are the children of the visa applicant’s husband’s brother – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.05, Schedule 2, cl 103.213

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 to refuse to grant the visa applicants Parent (Migrant) (Class AX) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 19 March 2015. The delegate refused to grant the visas on 29 January 2019 on the basis that cl 103.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) was not satisfied because the delegate found the visa applicant did not meet the balance of the family test in reg.1.05.

   Background

3. The review applicant was born in China and is currently 37 years old. He was granted a Subclass 801 Partner (Residence) visa in 2014. He is an Australian citizen. The visa applicants are the review applicant’s parents. They are citizens of China. His mother is 60 years old and his father is 64 years old. They were married on 28 February 1983. His mother is the primary visa applicant. In a notarial certificate issued 6 March 2015 provided to the Department it was stated that the review applicant was the only child of his parents.

4. In the application made by the parties, in answer to question 59 where the visa applicant was required to provide details of all members of her husband’s family, she stated that he had an older brother, Fucheng Song. In providing details of “Your partner’s children (including stepchildren from both current and previous marriages/relationships)” she provided the following details:

   ·Yingfeng Song, date of birth 27 November 1977;

   ·Yinfu Song, date of birth 21 April 1979; and

   ·Yinping Song, date of birth 19 April 1982;

5. The Department wrote to the review applicant on 13 March 2017 noting the information in the visa application indicated the second named visa applicant, her husband, had three children who continued to live in China. As such, it appeared the visa applicant did not meet the balance of family test. The applicant was invited to comment on or respond to this information. No response was received by the Department from the review applicant.

6. The delegate who considered the application noted that the visa applicant had disclosed her husband had four children, three of whom continued to live in China. On this basis, the delegate found the visa applicant had a greater number of children residing in China than in Australia and therefore did not meet the balance of the family test in reg.1.05. Accordingly, the visa applicant did not meet the criteria in cl.103.213 and refused the application.

   Information to the Tribunal

7. The review applicant provided a statutory declaration where he claimed that incorrect information had been provided in the visa application. The review applicant claimed that when the visa applicant had listed the children in answer to question 59 that she had listed the children of her husband’s brother. It was claimed that the only child of the visa applicants was the review applicant. This statement was repeated by the visa applicant in a statutory declaration.

8. The review applicant provided a copy of the visa applicant’s marriage certificate showing that they were married on 28 February 1983, after the dates of birth of her brother-in-law’s children. She provided a certificate stating that the only members of her family unit were herself, her husband and the review applicant. She provided a certificate stating that Fucheng Song was the father of Yinfeng Song, born on 27 October 1977, Yinfu Song, born on 21 April 1980, and Chunmei Song, born on 19 April 1982.

9. In the Partner visa application of the review applicant in response to the requirement in the application and in personal particulars form in response to the requirement to provide details of all his siblings he simply wrote “NA”. In the statements provided by the review applicant and his wife, statements were made that they had met each other parents, however no comment was made that either party had any siblings.

10. In light of the information now before the Tribunal, the Tribunal has proceeded to a decision without the need for a hearing.

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

    FINDINGS AND REASONS

12. The visa application was made on the basis that the visa applicant is a parent of Jianjun Song who is an Australian citizen (‘the child’). The evidence before the Tribunal is that the sponsor, Jianjun Song, is the child of the review applicant.

13. As noted above, cl 103.213 requires that the visa applicant satisfy the balance of family test, as defined in reg 1.05, at the time of application. A person satisfies the balance of family test if the number of his or her eligible children is either: greater than or equal to the total number of ineligible children: reg 1.05(2C); or greater than the greatest number of ineligible children who are usually resident in a particular overseas country: reg 1.05(2D).

14. Children for these purposes, includes all natural, adopted and step-children (as defined in reg 1.03) of either the parent or the parent’s current spouse or current de facto partner: reg 1.05(1)(a). However, no account is to be taken of certain children as specified in reg 1.05(3). If the whereabouts of a child of the visa applicant is unknown, the child is taken to be resident in the child’s last known usual country of residence: reg 1.05(1)(b).

15. The basis of the Department’s decision was that in the application the visa applicant disclosed her husband had three children who resided in China. Despite requesting an explanation for this information, no explanation was provided by the review applicant or visa applicant prior to the Department making their decision.

16. The review applicant, who prepared the visa application, has now explained that an error was made in providing this information. In providing details of three children in answer to the requirement to provide details of the visa applicant’s partners children, it was claimed that details were provided as to the visa applicant’s husband’s brother’s children. The explanation for this error was that in the question above the requirement to list visa applicant’s husband’s children, she was required to list all siblings of her husband and the information as to the children was assumed to relate to her husband’s brother’s children, and not their own children or any child of the husband who was not a child of the visa applicant. The visa applicant has provided a statutory declaration where she repeats these claims.

17. The Tribunal accepts that the information provided in the visa application form stating the visa applicant’s husband had three children was provided by mistake. The Tribunal accepts that the children identified in the form are in fact the children of the visa applicant’s husband’s brother and are therefore the nephew and nieces of the visa applicant and not children of the visa applicant or her husband.

18. In coming to this conclusion, the Tribunal has taken into account the following:

    ·The information in the application form only identifies the three children of the husband’s brother and not the review applicant who would have been included if they were listing all the children of the visa applicant’s husband;

    ·There is no evidence that the visa applicant’s husband was married or in any other relationship before he married the visa applicant;

    ·Certificates have been provided confirming that the review applicant is the only child of the visa applicant and her husband;

    ·Certificates have been provided confirming the children identified in the application are in fact the children of the husband’s brother, with one of those children still living with the husband’s brother; and

    ·In the Partner visa application made by the review applicant, he does not identify any other siblings or half siblings.

19. In these circumstances, the Tribunal finds that the only child of the visa applicant and her husband is the review applicant. The Tribunal finds the three children identified in the application as children of the visa applicant’s husband are in fact the nephew and nieces of the visa applicant’s husband and are not, therefore, relevant when assessing whether the visa applicant meets the balance of family test.

20. The Tribunal finds that the only child of the visa applicant and her husband is the review applicant. The review applicant is resident in Australia and is an Australian citizen. As the only child of the visa applicant and her husband is the review applicant who is resident in Australia the visa applicant meets the balance of family test.

21. On the basis of the findings above, the Tribunal finds at the time of application the visa applicant met the balance of family test in reg 1.05 and therefore satisfies cl 103.213. As the primary visa applicant meets this criterion for the grant of the visa, the application of the second named visa applicant should now be reconsidered in full.

    DECISION

22. The Tribunal remits the applications for Parent (Migrant) (Class AX) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

    ·cl 103.213 of Schedule 2 to the Regulations.

    Hugh Sanderson
    Member