Zheng (Migration)

[2020] AATA 4822

Zheng (Migration) [2020] AATA 4822 (17 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yuke Zheng

CASE NUMBER:  1925593

HOME AFFAIRS REFERENCE(S):          CLF2018/177851

MEMBER:Russell Matheson

DATE:17 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·Regulation 1.20KB

Statement made on 17 November 2020 at 8:35pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – police check – certificates for sponsor and partner from Australia and home country provided – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20KB, Schedule 2, cls 802.215(b), 802.226

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 26 August 2019 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 for the visa on 10 July 2018. 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.802.226 because the sponsorship in cl.802.215 had not been approved.

4. The applicant seeks review of the delegate’s decision.

5. No hearing was held in this case as the Tribunal was able to make a favourable determination on the materials before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case the visa application is not supported by a letter of support from a State or Territory government welfare authority and therefore the applicant does not meet cl.802.215(a) and must meet the requirements in cl.802.215(b). Clause 802.215(b) requires that, at the time of application, the applicant is sponsored by a person who has turned 18, is an Australian citizen, permanent visa holder or an eligible New Zealand citizen. The sponsor must be either the person for whom the applicant is their dependent child, or a cohabiting spouse or de facto partner of that person.  At the time of decision, this sponsorship must have been approved and still be in force: cl.802.226.

8. Regulation 1.20KB limits the Minister’s discretion to approve sponsorships. Regulation 1.20KB applies if the primary or secondary applicant is under 18 at the time of application.

9. Sub-regulations 1.20KB (11) and (12) say:

   Evidence of charge or conviction

   (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 facto 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.

   (12)     In addition to other reasons set out in this regulation for refusing to approve a sponsorship, the Minister may refuse to approve the sponsorship of all applicants for a visa if:

   (a)      the Minister has requested a police check for the sponsor or the sponsor’s spouse or de facto partner; and

   (b)      the sponsor or the sponsor’s spouse or de facto partner does not provide the police check within a reasonable time.

   Application details

10. In the present case the application for the visa included the applicant’s Chinese Notarial Certificate of Birth and passport, which record his date of birth as 8 October 2017, making him aged 9 months on the day this application was lodged. This information confirmed that the applicant is under 18 years of age. Accordingly, the applicant was under 18 years of age at the time of application.

11. The applicant is sponsored by his parent (mother), Qianling SUN. Departmental records show that the sponsor has spent more than 12 months in Australia in the last 10 years.

12. At question 34 of Form 40CH – In which countries have you lived for 12 months or more during the last 10 years, the sponsor declared that she resided in Australia between the period of November 2007 until January 2010. The sponsor did not give details of overseas travel and residence.

13. At question 37 of the Form 40CH the sponsor advised she is in a partner relationship with Zilong Zheng (the applicant’s father).

14. In response to question 53, of the Form 40CH, the sponsor advised her partner has lived in the following countries for a cumulative period of 12 months or more, over the last 10 years, since turning 16 years of age: China (until June 2014).

15. On the 04 April 2019 letters requesting evidence in support of the application were sent to the authorised email addresses for the applicant, the sponsor and the sponsor’s partner.

16. The following information was requested from the sponsor and the sponsor’s partner:

    ·An Australian Federal Police (AFP) National Police Certificate for both parents; and

    ·Police clearance from each country where both parents have lived for a total of 12 months or more in the last 10 years (calculated accumulatively).

17. At the date of the delegate’s decision AFP police clearances for the sponsor and the sponsor’s partner or a Chinese police clearance certificate for the sponsor’s partner had not been received and as a result the visa application was refused.

18. AFP National Police Certificates dated 10 September 2019 for the sponsor and 10 May 2019 for the sponsor’s partner have now been provided. The certificates state that there are no disclosable court outcomes for the sponsor and the sponsor’s partner. A Notarial Certificate (translated) dated 6 September 2019 from The People’s Republic of China has also been provided. The certificate states that the sponsor’s partner has no record of committing offences against the criminal laws during his residence in the People’s Republic of China until 2 September 2019.

19. Accordingly, the requirements in r.1.20KB are met.

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

    DECISION

21. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·            Regulation 1.20KB

    Russell Matheson
    Member