Xu (Migration)

[2017] AATA 2884

Xu (Migration) [2017] AATA 2884 (29 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Winnie Ruopeng Xu

CASE NUMBER:  1714669

DIBP REFERENCE(S):  CLF2016/9104

MEMBER:Moira Brophy

DATE:29 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 29 November 2017 at 1:50pm

CATCHWORDS
Migration – Child (Residence) (Class BT) visa – Subclass 802 (Child) – No valid passport – Permission required from applicant’s father – No contact with father – Not unreasonable to hold valid passport – Request for referral to Minister declined

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 802.216, cl 802.223, cl 802.226A, Schedule 4, Public interest criteria 4021

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 19 June 2017 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 applied to the Department of Immigration for the visa on 9 February 2016. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative).  In this case, claims have only been made in respect of Subclass 802 (Child).]

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.223.

4. The delegate refused to grant the visa on the basis that cl.802.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the passport requirements in Public Interest Criterion ('PIC') 4021 of Schedule 4 to the Regulations were not met.

5. The applicant appeared before the Tribunal on 27 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the mother of the visa applicant Ms Yanwen Wang. 

6. The applicant was represented in relation to the review.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the criteria as set out in cl. 802.223 for the grant of a Child (Residence)(Class BT) visa.

9. Cl.802.223(a) requires the applicant to satisfy public interest criteria 4001, 4002, 4003, 4004, 4007, 4020 and 4021. Public Interest Criterion 4021 of the Regulations provides that for public interest criterion 4021, either the applicant holds a valid passport that was issued to the applicant by an official source and is in the form issued by the official source and that is not in a class of passports specified by the Minister in an instrument in writing; or it would be unreasonable to require the applicant to hold a passport.

10. The Tribunal was satisfied that at the time the application was made the applicant, Ms Winnie Ruopeng Xu was the holder of a valid passport(folio 20 Department file). That passport was issued on 28 September 2011 and expired on 27 September 2016.

11. The Department on numerous occasions requested that a copy of a current passport be provided.

12. At the time of hearing the mother of the review applicant, Ms Wang told the Tribunal she had been unable to obtain a valid passport for the visa applicant.

13. When asked by the Tribunal about her current circumstances Ms Wang said she and the visa applicant were living in rented accommodation at Chatswood. She said she was in receipt of parenting payment single and family tax benefits from Centrelink. The rent on the apartment was $500 per week. Ms Wang said she supplemented her Centrelink income with some savings she had and her parents sometimes send money to her from China. Ms Wang said she was last in paid employment in China in 2015. She said she had worked in accounting and in translating.

14. Ms Wang told the Tribunal the visa applicant had been born in Australia. A copy of her birth certificate was on file (folio 19 Department file). She was presently on a Bridging visa. She attends Chatswood Public School and is in year one. The visa applicant had been in China in the period from 26 November 2011 to 12 November 2015. Ms Wang said her parents were caring for her grandmother who was 98 years old so they were not able to care for the visa applicant as well. Ms Wang said she had remained in China in the period from 3 August 2013 to 5 August 2015. Ms Wang had also been out of Australia in the period from 20 October 2015 to 27 October 2015.

15. Ms Wang said she was not able to obtain a passport for the visa applicant as that required permission from the visa applicant’s father and they were divorced and she had no contact with him. When asked how she had obtained a tourist visa for the visa applicant she said she had her lawyer make contact with her ex-husband through his aunt and he had signed both the divorce papers and the application for a tourist visa. Ms Wang was not able to say why she could not contact her ex-husband in the same way in order to obtain a passport for the visa applicant.

16. The Tribunal finds the applicant does not satisfy PIC 4021(a).

17. The Tribunal then considered whether it would be unreasonable to require the applicant to be the holder of a valid passport. While recognising the difficulties put forward by the visa applicant’s mother, that may be incurred in obtaining the signature of a parent who is no longer present in a child’s life, those difficulties do not in the Tribunal’s mind overcome the requirement for a visa applicant to obtain a valid passport.

18. The Tribunal does not consider it is unreasonable to require the visa applicant to be the holder of a valid visa and therefore PIC 4021(b) is not satisfied.

19. Ms Wang said she would like to request Ministerial Intervention. She did not make any submissions to support that application other than saying she was intending to become an Australian citizen in the near future.

20. The Tribunal was satisfied on the evidence the visa applicant was not the holder of a current passport and it is not unreasonable to require her to hold one.

21. Accordingly, cl.802.223 is not met.

    CONCLUSION

22. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met.

23. Ms Wang indicated she wished to seek the Tribunal's recommendation for Ministerial Intervention in this matter.

24. The Tribunal has considered the circumstances of this case. It declines to bring the matter before the Minister. However the applicant may choose to do so.

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Moira Brophy
    Member