YAO (Migration)

[2018] AATA 5342

YAO (Migration) [2018] AATA 5342 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr YONGJUN YAO

VISA APPLICANTS:  Ms YOUHUI MA
Mr YIQING XIAO

CASE NUMBER:  1611630

DIBP REFERENCE:  2015069102

MEMBER:Rosa Gagliardi

DATE:29 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional)(Class UF) subclass 309 for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 visa:

·cl.309.212 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 29 October 2018 at 10:07am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship requirements – relevant police checks – Fuzhou Public Security Bureau Taijiang Branch “Certificate of No Criminal Conviction” – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20KB; Schedule 2, cls 309.212, 309.221

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 14 June 2016 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) Subclass 309 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 20 August 2015. The delegate refused to grant the visa on the basis the sponsor had not provided relevant police clearances from countries in which he had resided as required under cl.309.212.

3. A hearing was held on 21 September 2018 at which it was explained to the applicant and sponsor that the issue of meeting the Regulations relating to police checks was not one in which the Tribunal could employ any discretion and that the required documentation must be provided in order for the applicant to meet the requirements of the visa.

4. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

6. At the time of decision an applicant must satisfy cl.309.212, which requires the sponsor to demonstrate that he has no registerable offences in China which prevent him from being an approved sponsor so as to meet the requirements of 1.20KB(11). 

7. In this case as the secondary applicant is under 18 years of age, the sponsor is required to provide the department with all police checks relevant to his residency in Australia and overseas in order to meet the sponsorship requirements stipulated in 1.20KB(11).

   (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 factor 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.

8. In order to determine whether or not the sponsor meets the criteria stipulated by 1.20KB(11), the sponsor was requested to provide relevant Penal clearances.  The sponsor provided a National Police Clearance from Australia, however, at the time of application no Penal Clearance had been received regarding the sponsor’s time spent in China. 

9. The sponsor declares to have lived in Fuzhou, China from 2007 to 2011 and he was therefore required to provide a Penal Clearance for this period of residency in China.  The document was requested on four occasions.  As Regulation 1.20KB(12) enables the sponsorship of all applicants to be refused if the police checks are not provided, the Department refused the Partner visa under assessment.

10. The applicant has now made available to the Tribunal a copy of a notarised Fuzhou Public Security Bureau Taijiang Branch “Certificate of No Criminal Conviction” dated 17 October 2018, certifying that the sponsor had no “criminal punishment record” from 1 January 2007 to 17 October 2018.

11. The Tribunal does not have any information before it to have concerns that the document provided is not genuine and that the information contained therein is not accurate.

    DECISION

12. The Tribunal remits the application for a Partner (Provisional)(Class UF) subclass 309 for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 visa:

    ·     cl.309.212 of Schedule 2 to the Regulations; and

    ·     cl.309.221 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    Member