Zhang (Migration)

[2019] AATA 820

Zhang (Migration) [2019] AATA 820 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Chunyan Zhang

VISA APPLICANT:  Master Luyuan Zhang

CASE NUMBER:  1817940

HOME AFFAIRS REFERENCE(S):           2017051307 OSF2017/051307

MEMBER:David Barker

DATE:22 January 2019

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 Criterion 4004 for the purposes of cl.101.223 of Schedule 2 to the Regulations

Statement made on 22 January 2019 at 9:15am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – identity of the visa applicant’s biological father – visa applicant attained age of 18 – relevant public interest criterion no longer applies – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 101.226; Schedule 4, PIC 4017

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 16 June 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 8 February 2017. 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).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.226 and PIC 4017.

4. The delegate refused to grant the visa on the basis that cl.101.226 was not met as the visa applicant was not 18 years old at the time of application and the delegate was not satisfied that he was permitted by the laws of China to migrate to Australia, or that each person who can lawfully determine where he is to live consents to the grant of the visa, or that the grant of the visa would be consistent with any Australian child order in force in relation to him.

5. In reaching its decision the Tribunal was able to find in favour of the applicant on the basis of the material before it, and determined not to invite the applicant to appear at a hearing pursuant to section 360(2)(a) of the Act.

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

   BACKGROUND

7. The visa applicant in this matter was born on 5 September 2000. The review applicant, his mother, migrated to Australia in 2014 on a subclass 309 Partner visa and was subsequently granted a subclass 100 Permanent Partner visa in 2015.  The visa applicant was declared in the review applicant’s partner visa application, but the mother could not provide any details of the visa applicant’s biological father and the application was withdrawn.

8. In the application for the subclass 101 Child visa, medical records of the visa applicant’s birth listed the review applicant as his mother, but provided no details of his biological father.  The household registration (Hukou) booklet provided with the visa application lists the visa applicant in his maternal grandmother’s household.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether at the time of decision, the visa applicant satisfied cl.101.226, which in turn requires consideration of whether the requirements in Public Interest Criterion (PIC) 4017 and PIC 4004 are applicable, and if so, whether they are met.

10. Cl.101.226 provides:

    If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.

11. PIC 4017 requires the following:

    The Minister is satisfied of 1 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.

12. The Tribunal has no new evidence before it in relation to the identity of the visa applicant’s biological father, or as to the current circumstances of the visa applicant.

13. However, as the visa applicant is now over the age of 18 year, there is no requirement that PIC 4017 and 4018 are satisfied in relation to the applicant and cl.101.216 is not a relevant consideration at the time of this decision.

14. Cl.101.223, among other things requires that the applicant satisfied PIC 4004. This criterion requires that the visa applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.  On the basis of the available evidence, there is no indication this requirement is not met and accordingly cl.101.223 is met.

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

    DECISION

16. 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 Criterion 4004 for the purposes of cl.101.223 of Schedule 2 to the Regulations

    David Barker
    Member