Nkeokelonye (Migration)

[2023] AATA 3848

Nkeokelonye (Migration) [2023] AATA 3848 (8 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sylvester Kenechukwu Nkeokelonye

REPRESENTATIVE:  Mr Maker Mayek

CASE NUMBER:  2317019

HOME AFFAIRS REFERENCE(S):          BCC2021/2389748

MEMBER:Brendan Darcy

DATE:8 November 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 criteria for a Subclass 500 visa:

·     Regulation 2.03AA(2)

Statement made on 08 November 2023 at 10:40am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – character test – statement from an appropriate authority – Complete Disclosure AFP Certificate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 500.217; 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 Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 11 December 2021. 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, 500.217(1) 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 4 October 2023 on the basis that the applicant did not meet reg 2.03AA because no statement provided by an appropriate authority in a country where the applicant resides, or has resided, that provides evidence about whether or not the person has a criminal history.

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. After assessing the visa application, a delegate on behalf of the Minister sent the applicant letters by email on 31 January 203 and 24 March 2023 requesting further information, which included a request for a police certificate from the Australian Federal Police (AFP). With respect to the information regarding an AFP certificate, the applicant did not sufficiently respond in a timely manner.

9. The delegate proceeded to refuse the visa on 4 October 2023.

10. An application to have delegate’s refusal decision reviewed by the Tribunal was validly lodged on 23 October 2023.

11. On 25 October 2023, the Tribunal received a National Police Certificate (Complete Disclosure AFP Certificate) dated 19 October 2023 pertaining to the applicant. The document was issued by the Australian Federal Police.

12. This document or statement is suitable for the purposes of subregulation 2.03AA(2)(a).

13. Based on this information, no scheduled hearing was required to reach a favourable decision in this matter.

14. The applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

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

    DECISION

16. 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).

    Brendan Darcy
    Member