Zhu (Migration)

[2018] AATA 2638

Zhu (Migration) [2018] AATA 2638 (13 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Shoufeng Zhu

VISA APPLICANT:  Master Nuo Lei

CASE NUMBER:  1716447

DIBP REFERENCE(S):  BCC2016/3549860

MEMBER:Helena Claringbold

DATE:13 June 2018

PLACE OF DECISION:  Sydney

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

·Public Interest Criterion 4015 and 4016 for the purposes of cl.309.229 of Schedule 2 to the Regulations; and

·Public Interest Criterion 4017 and 4018 for the purposes of cl.309.326 of Schedule 2 to the Regulations.

STATEMENT MADE ON 13 JUNE 2018 AT 1:53PM

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional) visa –Secondary applicant – Dependent child – Biological father’s whereabouts unknown – Legal guardianship documentation provided – Law permits removal of child to another country – Decision under review remitted for reconsideration

LEGISLATION

Migration Regulations 1994 Schedule 2 cls 309.229, 309.326 Schedule 4 Criterion 4015, 4016

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 25 October 2016, Master Nuo Lei, the secondary visa applicant, applied for a Partner (Provisional) (Class UF) visa.  The application was based on him being the dependent child of Ms Menghua Lei, the primary visa applicant. Mr Shoufend Zhu, who is Ms Lei’s spousal partner, is the sponsor and review applicant in this matter.

2. On 21 July 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The refusal was based on the secondary visa applicant not satisfying Public Interest Criteria (PIC) 4015 and 4017. As a result the secondary visa applicant did not satisfy cl.309.22 and cl.309.32 of Schedule 2 to the Migration Regulations 1994 (the Regulations) of the Migration Act 1958 (the Act). This is a review of the delegate’s decision.

3. On 24 May 2018, the sponsor appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Ms Lei. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case file and the Tribunal’s case file and the evidence given at the Tribunal hearing.

   BACKGROUND ON THE EVIDENCE

6. The primary visa applicant was born in 1986 in Fujian, China. Her parents and two siblings live in China. In November 2015, she married Mr Shoufeng Zhu, the sponsor. On 21 July 2017, she was granted a Subclass 309 Partner visa. The secondary visa applicant was born in 2008 in Fujian, China.

   ISSUE

7. The issue in the present case is whether the visa applicant can satisfy PIC 4015, PIC 4016 and PIC 4017 and PIC 4018 and therefore meet the requirements of cl.309.229 and cl.309.326 of Schedule 2 to the Regulations.

8. Relevantly, these clauses require, that:

   ·Primary criteria - the secondary applicant is a member of the family unit and has not turned 18 and has made a combined application with the primary applicant and that Public Interest Criteria (“PIC”) 4015 and 4016 are satisfied in relation to the secondary applicant: cl.309.229 of Schedule 2 to the Regulations.

   ·Secondary criteria - the secondary applicant has not turned 18 and PIC 4017 and 4018 are satisfied: cl.309.326 of Schedule 2 to the Regulations.

9. Clause 309.229 requires that a person (in this clause called the additional applicant):

   a)  is a member of the family unit of the applicant; and

   (b)  has not turned 18; and

   (c)  made a combined application with the applicant -

   public interest criteria 4015 and 4016 are satisfied in relation to the additional applicant.

   ·PIC 4015 - the Minister is satisfied of one of the following that the law of the additional applicant’s home country permits the removal of the additional applicant, or each person who can lawfully determine where the additional applicant is to live consents to the grant of the visa, or the grant of the visa would be consistent with any Australian child order in force in relation to the additional applicant.

   ·PIC 4016 - the Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the additional applicant.

10. Clause 309.326 requires that if the applicant has not turned 18, PIC 4017 and 4PIC 4018 are satisfied in relation to the applicant.

    ·PIC 4017 - the Minister is satisfied pf one of the following that the law of the applicant’s home country permits the removal of the applicant, or each person who can lawfully determine where the applicant is to live consents to the grant of the visa, or the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

    ·PIC 4018 – The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.

    ·Home country is defined in r.1.03 of the Regulations, relevant to this matter, as the country of which the person is a citizen.

    CLAIMS AND FINDINGS

11. In the present case, the secondary visa applicant made a combined application with the primary visa applicant who was granted a Subclass 309 Partner visa on 21 July 2017.  At the time of application he was seven years old. A notarised birth certificate records the primary visa applicant as the secondary visa applicant’s biological mother.  His biological father’s details are not recorded on the birth certificate. On the evidence, the Tribunal is satisfied that the secondary visa applicant is dependent and considered to be a member of the primary visa applicant’s family unit.

12. As recorded in the delegate’s decision record, Chinese law stipulated by the Supreme People’s Court of the People’s Republic of China, is that, if one person intends to takes a child abroad alone, he/she should provide a written consent of the other parent, who is not directly involved in rearing the child; or they should provide evidence of the People’s Court verdict regarding revocation of the guardianship; or the evidence of a Civil Court verdict of declaration of missing, death, or loss of capability of civil conduct of the other parents. The applicant provided evidence including the following:

13. A statement from the primary visa applicant, translated in December 2016 where she claimed that after a night drinking with work colleagues, she discovered she was pregnant.  She was unable to locate the child’s father. She asked her parents to care for the child. In March 2017, the primary visa applicant stated that, the secondary visa applicant’s father is unknown.  In this statement, the primary visa applicant claimed that, the secondary visa applicant was raised by and under the custody of the primary visa applicant.

14. A notarised statement from the Residents’ Committee, Licha Village, Shekou Town, Fu’an City dated 18 April 2016, stated that the secondary visa applicant is illegitimate. In addition, he lived in his grandparent’s home and was raised by the primary visa applicant. Other information recorded is that the secondary visa applicant’s father has ‘never showed’ and the primary visa applicant is the secondary visa applicant’s only custodian.

15. A notarised declaration dated 21 March 2017, records that the primary visa applicant applied to the People’s Court of Fu’an City (the Court), Fujian Province, for confirmation that she is the secondary visa applicant’s guardian. She declared that she would like to assume all legal responsibility and liability for the secondary visa applicant.  A notarised Civil Verdict dated 3 April 2017 records that the Court determined that there must be a defendant in the lawsuit and the primary visa applicant was unable to provide a certain defendant. Because of the lack of information about the secondary visa applicant’s father, the court did not accept the case filed by the primary visa applicant.

16. A notarised Civil Judgement, of Fu’an People’s Court of Fujian Province, dated 26 September 2017.  This document records the Court’s acceptance of a dispute between the primary visa applicant who is the plaintiff and Zhong Aijin, who is the plaintiff’s mother and is the defendant about the custody of the secondary visa applicant.

17. The court records that the secondary visa applicant’s biological whereabouts is unknown.  The Court holds, pursuant of the General Principals of the Civil Law of the People’s Republic of China, the parents of a minor shall be his guardians. ‘Only the parents of the minor die or have no capacity or have no capacity of being guardians, may another person serve as the guardian of the minor. The performance of guardianship under law is protected by law. In the resent case, Plaintiff Lei Menghua as the minor Lei Nuo’s mother, is the only legal guardian, and shall be responsible for the support, care, education and management of her son Lei Nuo’.

18. The Tribunal accepts that the Fu’an People’s Court of Fujian Province, in its decision dated 26 September 2017, determined that the primary visa applicant is the only legal guardian of the secondary visa applicant and shall be responsible for the support, care, education and management of her son Lei Nuo.

19. On the evidence the Tribunal is satisfied that the secondary visa applicant is a member of the family unit of the primary visa applicant.  It is satisfied that the secondary visa applicant has not turned 18 and that he has made a combined application with the primary visa applicant.

20. The Tribunal is satisfied that the law of the additional applicant’s home country permits the removal of the additional applicant. The Tribunal is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the additional applicant.

21. The applicant satisfies PIC 4015, PIC 4016, PIC 4017 and PIC 4018 of schedule 2 to the Regulations.

22. Therefore the applicant meets cl.309.229 and cl.309.326 of Schedule 2 to the Regulations.

23. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

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

    ·Public Interest Criterion 4015 and 4016 for the purposes of cl.309.229 of Schedule 2 to the Regulations; and

    ·Public Interest Criterion 4017 and 4018 for the purposes of cl.309.326 of Schedule 2 to the Regulations.

    Helena Claringbold
    Member