Chen (Migration)

[2022] AATA 3761

Chen (Migration) [2022] AATA 3761 (7 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hui Chen

CASE NUMBER:  2203681

HOME AFFAIRS REFERENCE(S):          BCC2020/2797402

MEMBER:Naomi Schmitz

DATE:7 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

·Regulation 2.03AA(2).

Statement made on 07 October 2022 at 1:55pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – evidence of criminal history – China criminal record history and Australian Federal Police National Police Certificate provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 600.213; Schedule 4, Public Interest Criteria 4001; r 2.03AA

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 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 10 December 2020. The criteria for a Visitor (Class FA) visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: reg 2.03AA(1). In this case, cl.600.213 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

4. Regulation 2.03AA(2)(a) requires that, if requested, the applicant has provided a statement from a relevant authority in a country where the person resides or has resided that provides evidence about whether or not the person has a criminal history. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal may waive the requirement in reg 2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

5. On 23 December 2021 and 20 January 2022, the Department requested in writing that the applicant provide a statement by an appropriate authority in Australia to provide evidence of her criminal history (if any). The applicant did not provide a statement or any evidence in response to the Department’s request.

6. On 24 February 2022 the delegate refused to grant the visa on the basis that the applicant did not meet reg 2.03AA because the applicant failed to provide her Australian Federal Police (AFP) National Police Certificate (NPC). The applicant seeks a review of the delegate’s decision.

7. On 16 March 2022 the Tribunal invited the applicant to provide information by 30 March 2022 including:

   a.A copy of a NPC issued by the AFP for the purpose of ‘Immigration/Citizenship’; and

   b.Police certificates from each country where the applicant has lived for a total of 12 months or more, in the last 10 years, since turning 16 years old.

8. The applicant and her representative did not respond.

9. On 12 September 2022 the Tribunal wrote to the applicant to invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing via telephone commencing at 9:30am on 28 September 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

10. On 19 September 2022 at 11:03am an SMS hearing reminder was sent to the applicant’s mobile phone. The Tribunal did not receive an undelivered notification.[1] On 27 September 2022 at 11:03am a second SMS hearing reminder was sent to the applicant’s mobile phone. The Tribunal did not receive an undelivered notification.[2]

    [1] Tribunal Case Note Number 1

    [2] Tribunal Case Note Number 2

11. On 28 September 2022 at 12:24am the applicant provided the following documents:

    a.A receipt evidencing payment for the applicant’s first AFP NPC application on 21 June 2019;

    b.A receipt evidencing payment for the applicant’s second AFP NPC application on 27 September 2022;

    c.Proof of health check on 6 May 2022;

    d.A translated criminal record history from China dated 27 September 2022 confirming the applicant has no criminal record;

    e.A signed ‘response to hearing invitation’ dated 27 September 2022; and

    f.A document relating to the applicant’s son.[3]

    [3] This document could not be opened by the Tribunal due to a technical error with the document

12. The applicant appeared before the Tribunal on 28 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review. [4]

    [4] The representative Mr Wong is an education agent (not a registered migration agent) assisting with the applicant’s son’s student visa matters

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

    consideration of claims and evidence

14. The issue in this case is whether the applicant has provided a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history.

15. The primary decision record, a copy of which the applicant provided to the Tribunal, indicates that the applicant failed to provide her AFP NPC upon request by the delegate.

16. At hearing the Tribunal Member asked the applicant why she had applied for the second AFP NPC the day before the hearing when she knew it was a critical issue to the application and served documents late, on the morning of the hearing, in non-compliance with the President’s Practice Direction.[5]

    [5] COVID-19 Special Measures Practice Direction – migration and Refugee Division dated 2 March 2021

17. The applicant stated that the AFP did not provide her with a NPC upon her original request in June 2019. She stated that the AFP NPC must be three months current to the date of submission and therefore she lodged a second application the day before the hearing. The Tribunal Member put to the applicant that this still did not explain why she left her case preparations so late, in light of the various communication efforts by the Tribunal. The applicant stated that she was vacillating between whether or not she proceeded with the visa application and was considering withdrawing it, but decided to continue, as she did not want a visa refusal on her migration record. This was important to her as she currently has a son studying in Australia who she wishes to visit in the future. The representative stated that the applicant had lodged a second application with the AFP on 27 September 2022. He subsequently spoke to an AFP liaison person who advised the certificate would be provided within two to three business days.

18. Based on the above evidence, the Tribunal Member was satisfied that the applicant had set in chain steps to obtain a statement by an appropriate authority that provides evidence regarding the applicant’s criminal history. The Member informed the applicant and representative that if the applicant supplied the AFP NPC the matter could be remitted administratively without recourse to a hearing. The Member would allow the applicant until 26 October 2022 to submit the police clearance before the Member would re-consider re-listing the matter for hearing.

19. On 7 October 2022 the applicant provided a copy of her current AFP NPC dated 7 October 2022 which disclosed the applicant has no criminal record in Australia.

20. As the applicant has provided a statement from the appropriate authorities, including from Australia and China she therefore meets reg 2.03AA(2)(a).

    Conclusion

21. On the basis of the above findings, the applicant meets reg 2.03AA(2).

    decision

22. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

    ·Regulation 2.03AA(2).

    Naomi Schmitz
    Member