Li (Migration)

[2023] AATA 3479

Li (Migration) [2023] AATA 3479 (18 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daoyan Li

CASE NUMBER:  2311413

HOME AFFAIRS REFERENCE(S):          BCC2023/2294300

MEMBER:David Crawshay

DATE:18 September 2023

PLACE OF DECISION:  Melbourne

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

·Regulation 2.03AA(2).

Statement made on 18 September 2023 at 11:40am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – applicant provided a police clearance certificate from the appropriate authority in China – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA, Schedule 2, cl 500.217

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 Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 13 April 2023. The criteria for a Student (Temporary) (Class TU) 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.

2. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (“PIC”) 4001 or 4002: r.2.03AA(1). In this case, cl.500.217(1) of Schedule 2 of the Regulations requires an applicant to meet PIC 4001 and 4002. That applicant is therefore required to satisfy the criterion in r.2.03AA(2). Regulation 2.03AA(2)(a) requires that, if requested, that 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, that applicant has provided a completed approved Form 80. The Tribunal may waive the requirement in r.2.03AA(2)(a) if it is not reasonable for that applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for an applicant to provide a completed Form 80.

3. The delegate refused to grant the visa on 21 July 2023 on the basis that the applicant did not meet reg 2.03AA because he had not provided a police clearance certificate from the appropriate authority in China.

4. On 7 September 2023, the applicant submitted a document translated as “Notarial Certificate” from the Yanji Yanji Notary Public Office of Jilin Province of the same date. The Tribunal is satisfied that the certificate is genuine and current and that it is valid for the purposes of r.2.03AA(2)(a). Because the applicant has already submitted a current National Police Certificate from the Australian Federal Police, she satisfies r.2.03AA(2)(a). As she had previously provided a completed approved Form 80, she satisfies r.2.03AA(2)(b).

5. Regulation 2.03AA(2) is satisfied in its entirety.

   DECISION

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

   ·Regulation 2.03AA(2).

   David Crawshay
   Member