Matloob (Migration)

[2024] AATA 1540

Matloob (Migration) [2024] AATA 1540 (24 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Aafaq Matloob

CASE NUMBER:  2404046

HOME AFFAIRS REFERENCE(S):          BCC2022/3928101

MEMBER:Penelope Hunter

DATE:24 May 2024

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 24 May 2024 at 2:33pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – criminal history – Pakistan police character certificate, Australian Federal Police clearance certificate and character declaration provided upon review – disclosable court outcomes – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 56, 65
Migration Regulations 1994, Schedule 2, cl 500.217; Schedule 4, Public Interest Criterion 4001; r 2.03

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).

2. The applicant applied for the visa on 21 September 2022. 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.

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 500.217 of Schedule 2 of the Regulations requires the applicant to meet public interest criteria (PIC) 4001 and 4002. 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 13 February 2024 on the basis that the applicant did not meet reg 2.03AA because it was considered that the applicant had not responded to a request for information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Clause 500.217 of Schedule 2 to the Regulations provides that the applicant is to satisfy PIC 4001 and 4002 of the Regulations. PIC 4001 and PIC 4002 relate to a person passing the character test and not being assessed as a direct or indicate risk to security. Further, under the Regulations if a person is required to satisfy PIC 4001 or 4002 the criterion in subregulation 2.03AA(2) is prescribed. This states as follows:

   (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.

8. On 20 January 2023, the Department sent a letter to the applicant requesting that he provide:

   ·Online Form 80.

   ·Police clearance certificates

   ·Adverse response to character declaration.

9. In reply the representative for the applicant provided a completed Form 80 signed 7 February 2023, a police character certificate issued by the police in Pakistan, dated 23 July 2022, an adverse response to character declaration stating that the applicant was involved in the offence of deal with property proceeds of crime, which took place on 21 June 2022 and attached the relevant bail acknowledgement letter with court attendance notice and facts sheet.

10. On 23 May 2023, the Department sent a further letter to the applicant requesting that he provide:

    ·Character declaration details request.

    ·Police clearance certificates.

11. In reply the representative for the applicant requested and extension of time to respond and advised the Department that the applicant had applied and was awaiting his Australian Federal Police (AFP) clearance certificate and the receipt for payment dated 8 June 2023.

12. On 8 August 2023, the Department responded and granted the applicant an extension.

13. The applicant subsequently provided to the Department an AFP clearance certificate dated 6 July 2023 with pending court appearances.

14. On 13 September 2023, the Department sent a further request for details to the applicant pursuant to s 56 of the Act and requested:

    ·Online Form 80.

    ·Financial capacity.

    ·Evidence of course fees.

    ·Evidence of annual income.

    ·Relationship to source of funds.

15. In response the representative for the applicant submitted that the Online Form 80 had already been uploaded to the applicants account and they also submitted a confirmation of enrolment, a letter dated 10 October 2023 from his education provider confirming his enrolment and bank account details. A copy of the Form 80 dated 1 October 2023, is located on the applicant’s Department file.

16. On 23 October 2023, the Department sent a further request for details to the applicant pursuant to s 56 of the Act and requested:

    ·Police clearance certificate – current AFP that provides outcome of court appearance.

    ·Character declaration request details request – current up to date information regarding court date on 20 July 2023.

17. On 20 November 2023, the applicant then provided the Department with an AFP Police Certificate dated 9 November 2023 which disclosed pending court appearances for four listed offences on 30 November 2023. This information was up to date at the time it was provided regarding a future court date.

18. In refusing the visa on 13 February 2024, the delegate acknowledged that the applicant had responded to the request of 23 October 2023 with the provides on the AFP Police Clearance certificate dated 9 November 2023, however the delegate went on to find that the applicant had not satisfied reg 2.03AA of the Regulations because the applicant had not provided a character declarations details statement. As set out in paragraph 7, the documents or information prescribed by reg 2.03AA of the Regulations is a statement from an appropriate authority and a completed approved Form 80. It does not prescribe a character declarations detail statement.

19. The Tribunal also notes that the applicant has already on two occasions when requested provided to the Department an AFP Police Certificate.

20. Upon review, on 17 April 2024, the applicant submitted another AFP Police Certificate dated 11 April 2024, this records two disclosable court outcomes for the applicant as of 27 March 2024. The applicant also submitted another copy of a police character certificate issued by the police in Pakistan, dated 23 July 2022. The Tribunal is satisfied on the evidence that the applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a) of the Regulations.

21. The Tribunal is also satisfied that the applicant complied with the Department’s requests to provide a Form 80 dated 20 January 2023 and 13 September 2023, with the completed Form 80’s lodged dated 7 February 2023 and 1 October 2023. The Tribunal finds that he has complied with reg 2.03(2)(b) of the Regulations.

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

23. Given the above finding the appropriate court is to remit the application for the visa to Minister to consider the remaining criteria for the applicant for a Subclass 500 Student (Temporary) (Class TU) visa, including the requirements of PIC 4001 for the purposes of cl 500.217 of Schedule 2 to the Regulations.

    DECISION

24. 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).

    Penelope Hunter
    Member