Gong (Migration)

[2022] AATA 1405

Gong (Migration) [2022] AATA 1405 (26 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiaomei Gong

REPRESENTATIVE:  Mrs Jian Shi (MARN: 0958209)

CASE NUMBER:  2201658

HOME AFFAIRS REFERENCE(S):          BCC2020/2501705

MEMBER:Nicole Burns

DATE:26 April 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 26 April 2022 at 11:34am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – character test – evidence of criminal history – Chinese Notarial Certificate and Australian 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 20 October 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. The delegate refused to grant the visa on 20 January 2022 on the basis that the applicant did not meet reg 2.03AA because she did not provide a statement from an appropriate authority in Australia and China that provides evidence about whether or not she has a criminal history, despite being requested in writing to do so. 

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

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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. 

   Has the applicant provided a statement from an appropriate authority?

9. According to information contained in the delegate’s decision record, on 15 October 2021 and 21 December 2021 the Department requested in writing that the applicant provide a statement by an appropriate authority in Australia and China that provides evidence about whether or not she has a criminal history.  However, by the time of the delegate’s decision she had failed to provide these statements.

10. On review the applicant’s representative submitted to the Tribunal a translated copy of a Penal Clearance Certificate from China dated 15 June 2021 and a Notarial Certificate from The People’s Republic of China, Shanghai Yangpu Notary Public Office dated 8 September 2021 which certifies that the applicant has no criminal record during her residence in China from November 16, 2009 to November 16, 2019.    

11. The applicant also submitted a copy of an Australian National Police certificate which certifies that there are no disclosable court outcomes recorded against her name as of 10 February 2022.

12. The applicant has provided a statement from an appropriate authority (in China and Australia) and therefore meets reg 2.03AA(2)(a).

    CONCLUSION

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

    DECISION

14. 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).

    Nicole Burns
    Member