Nguyen Huy (Migration)

[2023] AATA 1832

Nguyen Huy (Migration) [2023] AATA 1832 (8 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Phuong Anh Nguyen Huy

CASE NUMBER:  2206846

HOME AFFAIRS REFERENCE(S):          BCC2018/2080619

MEMBER:Anne Grant

DATE:8 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa for reconsideration, with the direction that the visa applicant meets the following criteria for the visa:

·Public interest criterion 4001 for the purposes of cl 461.223(a) of Schedule 2 to the regulations.

Statement made on 08 June 2023 at 1:18pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – Federal Court remittal – character test – police certificates from home country and Australia provided to tribunal – no disclosable court outcomes – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 4, criterion 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 on 25 January 2021 to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 14 May 2018. The delegate refused to grant the visa on the basis that they were not satisfied that the visa applicant satisfied Public Interest Criteria (PIC) 4001.

3. The applicant initially sought review of the decision on 26 January 2021 (review 2100818.)   On 23 March 2021, a differently constituted Tribunal found that the Tribunal did not have jurisdiction because a fee was not paid at the time of lodgement.  The applicant sought review of the decision and on 11 April 2022, the review was remitted by the Federal Court because the method of notification of the original decision by the Department was found to be defective.

4. The Triubnal opened a new review as ordered by the court (review 2206846).  Subsequently, the applicant was advised of the remittal and requested to pay the lodgement fee on 11 May 2022.  The Tribunal (differently constituted) decided on 2 August 2022 that it had no jurisdiction to hear the review, again because no fee had been paid. However after clarification of the circumstances, the review was reopened and the applicant subsequently paid the fee.

5. The Tribunal did not consider a hearing to be necessary as it was able to remit the matter on the material before it.

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 PIC 4001 is met, which requires the Minister (or the Tribunal standing in the Minister’s shoes) to be satisfied that the visa applicant passes the character test; or the Minister to be satisfied that there is nothing to indicate that the visa applicant would fail to satisfy the Minister that they pass the character test; or the Minister has decided not to refuse to grant a visa to the visa applicant, despite reasonably suspecting that they do not pass the character test; or the Minister has decided not to refuse to grant a visa to the visa applicant despite not being satisfied that they pass the character test.

8. According to the Departmental file, on various dates, the applicant was requested by the Department to provide a statement by an appropriate authority in Vietnam and Australia that provided evidence about whether or not the visa applicant has a criminal history. The delegate had not received those statements by the time they made the decision here under review. The delegate found that the visa applicant therefore did not satisfy PIC 4001.

9. On 28 October 2022 the visa applicant provided a Police Certificate (Judicial Curriculum Vitae Card NO. 2) from the Ministry of Justice, Social Republic of Vietnam, dated 28 January 2021.  The certificate provides that the applicant has no criminal records in that country. According to Departmental records and movement checks, the applicant been in Australia since this certificate was granted, except for travel overseas from  2 January 2023 until 31 January 2023.  Applying departmental policy on police checks, a police certificate for any country may be considered valid if the applicant has not spent twelve months or more in the country since the certificate was issued.   I accept that the Vietnam certificate is valid for the purposes of this review.  

10. On the same date, the applicant provided an AFP Police Certificate dated 30 January 2021. 

11. On 12 December 2022, the Tribunal requested that the applicant provide an updated National Police Certificate as the previous certificate was more than 12 months old.

12. On 8 May 2023, the applicant submitted to the Tribunal a Digital National Police Certificate from  the Criminal Records section of the Australian Federal Police dated 1 May 2023. This certificate states that the visa applicant did not have any disclosable court outcomes recorded against them, as at 19 April 2023.

13. Movement records reflect that the applicant has been in Australia since

14. On the evidence before it, the Tribunal finds that the applicant satisfies the character test and the requirements in PIC 4001 are met for the purposes of cl 461.223(a).

15. Given the above finding, the appropriate course is for the tribunal to remit the visa application to the minister for reconsideration of the remaining criteria for the subclass 461 visa.

    DECISION

16. The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa for reconsideration, with the direction that the visa applicant meets the following criteria for the visa:

    •          Public interest criterion 4001 for the purposes of cl 461.223(a) of Schedule 2 to the regulations

    Anne Grant
    Member