Jain (Migration)

[2023] AATA 3845

Jain (Migration) [2023] AATA 3845 (6 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shefali JAIN

REPRESENTATIVE:  Mr Adam Khaze (MARN: 0960138)

CASE NUMBER:  2304943

HOME AFFAIRS REFERENCE(S):          BCC2022/5527719

MEMBER:Mireya Hyland

DATE:6 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·Regulation 2.03AA(2)

Statement made on 06 November 2023 at 12:38pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – character test – statement from an appropriate authority – AFP National Police Certificate – Indian Police Clearance Certificate – Form 80 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 500.217; Schedule 4, PIC 4001, 4002

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, Shefali Jain, a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Jain applied for the visa on 22 December 2022. She lodged her review application on 6 April 2023 and the matter was constituted to the Tribunal on 27 September 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). Ms Jain applied for the visa to undertake study. The criteria for the grant of a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations. Regulation 2.03AA applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002 in Schedule 4 to the Regulations: r.2.03AA(1). In this case, cl.500.217 requires Ms Jain to meet PIC4001 and PIC4002. She is, therefore, required to satisfy the criterion in r.2.03AA of the Regulations.

3. Regulation 2.03AA(2)(a) requires that, if requested, the applicant has provided 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. Regulation 2.03AA(2)(b) requires the applicant to provide a completed approved Form 80 if requested. The delegate refused to grant the visa on the basis that Ms Jain did not meet r.2.03AA because the Department of Home Affairs requested that she provide the documents referred to in r.2.03AA(2) and she did not provide those documents.

4. The issue in this case is whether Ms Jain has provided a statement from a relevant authority in India and Australia with evidence about any criminal history and has completed a Form 80. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. On 25 August 2023, Ms Jain provided a National Police Certificate from the Australian Federal Police dated 10 January 2023. She also provided a completed Form 80 dated 18 August 2023. On 29 August 2023, Ms Jain provided an Indian Police Clearance Certificate from the Consulate General of India in Sydney.

6. Ms Jain has provided a statement from an appropriate Indian and Australian authority with evidence about whether or not she has a criminal history. There is no evidence that she has resided in any other country. Therefore, Ms Jain meets r.2.03AA(2)(a). Ms Jain has also provided a completed approved Form 80. Therefore, the requirement in r.2.03AA(2)(b) is met. On the basis of these findings, Ms Jain meets r.2.03AA(2).

   DECISION

7. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

   ·Regulation 2.03AA(2).

   Mireya Hyland
   Member