Nie (Migration)

[2022] AATA 1853

Nie (Migration) [2022] AATA 1853 (1 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pingshan Nie

REPRESENTATIVE:  Mr Baicang Chen (MARN: 1688362)

CASE NUMBER:  2202558

HOME AFFAIRS REFERENCE(S):          BCC2020/2910453

MEMBER:Kira Raif

DATE:1 June 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 01 June 2022 at 7:20am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – criminal history statement –police certificates from Australia and home country provided to tribunal – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 2, cl 600.213, 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 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 1 January 2021. 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.600.213 of Schedule 2 of the Regulations requires the applicant to meet PIC4001. The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

3. 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.

4. The delegate refused to grant the visa on 8 February 2022 on the basis that the applicant did not meet reg 2.03AA because the applicant failed to provide his AFP certificate. The applicant seeks review of this decision.

5. 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. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Has the applicant provided a statement from an appropriate authority?

6. The primary decision record, a copy of which the applicant provided to the Tribunal, indicates that  the applicant was requested to provide his Australian police certificate but failed to do so. In April 2022 the Tribunal received from the applicant his AFP and Chinese police certificates.

7. As the applicant has provided a statement from an appropriate authority, he therefore meets reg 2.03AA(2)(a).

   Conclusion

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

   DECISION

9. 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).

   Kira Raif
   Senior Member