Amarasinghe (Migration)

[2022] AATA 762

Amarasinghe (Migration) [2022] AATA 762 (16 March 2022)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ranpati Dewage Shavidu Nimanthana Amarasinghe

REPRESENTATIVE:  Mr M B U Namal Fernando (MARN: 0214726)

CASE NUMBER:  2118468

HOME AFFAIRS REFERENCE(S):          BCC2020/2184799

MEMBER:David Barker

DATE:16 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 16 March 2022 at 12:51pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – character test – criminal history – Australian Federal Police National Police Certificate – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 500.217; Schedule 4, Public Interest Criterion 4001; r 2.03AA

CASES

Hasran v MIAC [2010] FCAFC 40     

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 18 November 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 27 August 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the requirements of Public Interest Criterion 4001 (PIC 4001) were not met, as the review applicant failed to provide the Department with an Australian Federal Police (AFP) National Police Certificate.

4. The applicant, on 7 December 2021, provided the Tribunal with a copy of the delegate’s decision record and requested a review of the delegate’s decision.

5. On 13 December 2021 the Tribunal wrote to the applicant, inviting the applicant to provide a copy of a National Police Certificate issued by the AFP for the purpose of Immigration/Citizenship. The review applicant was asked to provide the requested information, or evidence of making arrangements to obtain the requested information, by 29 December 2021. The Tribunal did not receive the requested information, or evidence of making arrangements to obtain the requested information within the specified time frame.

6. On 23 February 2022 the Tribunal again wrote to the review applicant, on this occasion pursuant to s.359(2) of the Act, asking him to provide a copy of a National Police Certificate issued by the AFP for the purpose of ‘Immigration/Citizenship, or evidence of making arrangements to obtain the requested information within the specified time frame. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by the prescribed period, being 9 March 2022, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The review applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. Accordingly, The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

10. Clause 500.217(1) requires an applicant for the Student visa satisfy a range of Public Interest Criteria, including PIC 4001.

    PIC 4001

    Either:
    (a) the person satisfies the Minister that the person passes the character test; or
    (b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that
    the person would fail to satisfy the Minister that the person passes the character test; or
    (c) the Minister has decided not to refuse to grant a visa to the person despite reasonably
    suspecting that the person does not pass the character test; or
    (d) the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

11. As the applicant was required to satisfy PIC 4001 for the grant of the visa, r.2.03AA applies. This Regulation states:

    Criteria applicable to character tests and security assessments

    (1) In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

    (2) If the Minister has requested the following documents or information, the person has provided the documents or information:

    (a) a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

    (b) a completed approved Form 80.

    Note: For paragraph (a), an example of an appropriate authority is a police force.

    (3) The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.

12. The issue in the present case is whether the applicant has provided the AFP National Police Certificate which would provide evidence about whether or not he has a criminal history in Australia.

13. The Department, on 9 November 2020 and 15 March 2021, sent the review applicant letters requesting that he provide a National Police Certificate issued by the AFP for the purpose of Immigration/Citizenship. The applicant did not provide any response to these information requests.

14. With his application for review to the Tribunal the applicant did not provide any additional information, other than a copy of the decision of the delegate.  Further to this, the Tribunal has, on 13 December 2021 and 23 February 2022, written to the review applicant requesting a National Police Certificate issued by the AFP for the purpose of Immigration/Citizenship, or evidence of making arrangements to obtain the requested information. As at the date of this decision neither the requested information or any further documents have been received from the review applicant or their migration agent in relation to the application for review.

15. The Tribunal finds that the applicant, despite repeated requests, has not provided a document which would provide required evidence about whether or not he has a criminal history.  This was the National Police Certificate issued by the AFP for the purpose of Immigration/Citizenship, which is a statement consistent with that prescribed in r.2.03AA(2)(a). As a consequence, the criteria at r.2.3AA(2)(a) are not met.

16. On the basis of the available evidence, being no submissions or other evidence that the review applicant was constrained from providing the requested documentation, the Tribunal finds that it is not satisfied that it is reasonable  for the applicant to not provide the requested AFP National Police Certificate.  It follows that the criteria at r.2.3AA(3) are not met.

17. In the circumstances, as r.2.3AA(3) does not apply and as discussed above r.2.3AA(2)(a) was not met, the Tribunal finds that the applicant has failed to provide the evidence requested under reg 2.03AA.  This results in his failure to satisfy PIC 4001.

18. Accordingly, the Tribunal is not satisfied that the applicant meets cl 500.217(1).

19. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    David Barker
    Member