Liu (Migration)

[2022] AATA 4955

Liu (Migration) [2022] AATA 4955 (27 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Qiangben Liu

CASE NUMBER:  2205576

HOME AFFAIRS REFERENCE(S):          BCC2020/1927937

MEMBER:Moira Brophy

DATE:27 July 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 visa:

·Regulation 2.03AA(2).

Statement made on 27 July 2022 at 1:12pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – criminal history – statement from an appropriate authority – National Police Certificate issued by the Australian Federal Police (AFP) – Chinese Notarial Certificate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 600.213; Schedule 4, PIC 4001

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 July 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, 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 30 March 2022 on the basis that the applicant did not meet reg 2.03AA because despite being requested he had failed to provide clearance checks from countries he had lived in for over 12 months in the preceding ten years.

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

   consideration of claims and evidence

7. 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?

8. On 31 May 2022 an outreach was conducted by the Tribunal requesting the applicant to provide a copy of a National Police Certificate issued by the Australian Federal Police (AFP) for the purpose of Immigration/Citizenship and police certificates from each country where the applicant has lived for a total of 12 months or more in the past 10 years since turning 16 years old.

9. On 2 June 2022 review applicant submitted a copy of a National Police Certificate issued by the Australian Federal Police for the purpose of ‘Immigration/Citizenship’ dated 10 February 2021 and a translated Chinese Notarial Certificate dated 1 April 2022 (refer to Doc Id: 9837187).

10. On 3 June 2022 the Tribunal outreached for an updated version of the Australian Federal Police for the purpose of ‘Immigration/Citizenship.’ 

11. On 9 June 2022 the applicant provided a copy of Australian Federal Police for the purpose of ‘Immigration/Citizenship’ dated 8 June 2022.

12. Accordingly the Tribunal finds the applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

    decision

13. 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:

    Moira Brophy
    Member