Chen (Migration)

[2022] AATA 2640

Chen (Migration) [2022] AATA 2640 (7 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yuannong Chen

CASE NUMBER:  2200645

HOME AFFAIRS REFERENCE:               BCC2021/331553

MEMBER:L. Symons

DATE:7 April 2022

PLACE OF DECISION:  Sydney

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 (Visitor) visa:

·PIC 4001(a) for the purposes of cl 600.213(1) of Schedule 2 to the Regulations.

Statement made on 07 April 2022 at 6:01pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – copy of a National Police Certificate provided – applicant passed the character test – requirements in PIC 4001(a) are met – decision under review remitted

LEGISLATION

Migration Act 1958, ss 56, 65

Migration Regulations 1994, r 2.03AA(2), Schedule 2, cl 600.213

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 12 January 2022 to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied to the Department of Home Affairs (the Department) for the visa on 7 March 2021. The delegate refused to grant the visa on the basis that he did not satisfy the requirements of cl.600.213(1) because he did not meet the requirements of Public Interest Criterion (PIC) 4001.

3. On 17 January 2022, the applicant applied to the Tribunal for a review of that decision. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

5. The issue in this review is whether the applicant meets PIC 4001 as required by the criteria for the grant of the visa. PIC 4001 provides as follows:

   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.

6. Regulation 2.03AA of the Migration Regulations, as attached to this decision, provides the criteria applicable to character tests and security assessments. This includes the provision of a statement provided by an appropriate authority in a country (such as the Police force) where the applicant resides, or has resided, that provides evidence about whether or not the applicant has a criminal history (r.2.03AA(2)(a)).

7. The Department wrote to the applicant on 26 August 2021 and 1 December 2021, pursuant to s.56 of the Act, requesting that he provide the Department with a National Police Certificate issued by the Australian Federal Police and a Police Certificate from each country where he has lived for a total of 12 months or more in the last 10 years. The applicant did not provide the Department with the requested statements or any evidence that he had attempted to obtain the statements. The Minister’s delegate was therefore not satisfied that he passed the character test and his visa application was refused on this basis.

   Does the applicant pass the character test (PIC 4001(a))?

8. The applicant has provided the Tribunal with a copy of a National Police Certificate dated 11 November 2021 issued by the Australian Federal Police (AFP Ref: 8609061PC). He has also provided the Tribunal with a copy of a Penal Clearance Certificate dated 27 January 2022 from the Chongqing Public Security Bureau in China indicating that there were no recorded Court outcomes against the applicant.

9. For these reasons, the Tribunal finds that the requirements in PIC 4001(a) are met

10. .

11. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

12. 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 (Visitor) visa:

    ·PIC 4001(a) for the purposes of cl 600.213(1) of Schedule 2 to the Regulations.

    L. Symons
    Member

    ATTACHMENT

    Public Interest Criteria [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.

    Reg 2.03AA    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.