Roh (Migration)

[2022] AATA 3165

Roh (Migration) [2022] AATA 3165 (12 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sangyub Roh

CASE NUMBER:  2104048

HOME AFFAIRS REFERENCE(S):          BCC2020/1706936

MEMBER:Nathan Goetz

DATE:12 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.

Statement made on 12 September 2022 at 10:42am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – character test – criminal history statement – Australian national police check not provided to department when requested – no response to tribunal’s invitation to comment or appearance at hearing – applicant departed Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 56, 65, 359A, 360(1), (2)(c), (3), 363A
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2, cls 600.213, 600.411, Schedule 4, criterion 4001

statement of decision and reasons

application for review

1. This is an application for review of a decision under s 65 of the Migration Act 1958 (Cth) (the Act) made by a delegate of the Minister to refuse to grant the applicant a Visitor (Class FA)

   BACKGROUND

2. In the visitor visa application form, the applicant identifies as a male citizen of South Korea who was in Australia at the time of visa application. At the time of visa application, he was aged 38 years.

3. On 9 June 2020 the applicant applied for the visa. 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.

4. On 9 March 2021 the delegate refused to grant the visa on the basis that the applicant did not satisfy Regulation 2.03AA of the Regulations for the purpose of Public Interest Criterion (PIC) 4001 for the purpose of cl 600.213.

5. On 30 March 2021 the applicant applied to the Tribunal for review of the decision.

6. On 26 August 2022 the Tribunal wrote to the applicant for two reasons.

7. The first reason was to invite the applicant under s 360(1) of the Act to appear at a Tribunal hearing scheduled for 11:30am on 20 September 2022 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because the Tribunal considered that it should not decide the review in the applicant’s favour based on the material it had.

8. The Tribunal notes that the applicant also did not complete and return the ‘Response to hearing invitation form’ that accompanied the hearing invitation.

9. The second reason was to invite the applicant under s 359A of the Act to comment on or respond to information that would be a reason or part of the reason for affirming the decision under review. The applicant was required to do so by 9 September 2022. The information is detailed later in this decision record. The invitation was accompanied by a warning that a failure to comment on or respond to the information by 9 September 2022 would result in the Tribunal hearing being cancelled: ss 360(2)(c), 360(3), 363A of the Act.

10. The applicant did not comment on or respond to the information by 9 September 2022.

11. Accordingly, the Tribunal hearing was cancelled, and the Tribunal has made a decision on the review without taking any further steps to allow or enable the applicant to appear at a Tribunal hearing.

    CRITERIA FOR THE VISA

12. The delegate refused to grant the visa on a particular basis. The relevant criteria considered by the delegate is as follows:

    Regulation 2.03AA of the Regulations

    (1)  In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

    (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.

    (3)  The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.

    Clause 4001 of Schedule 4 to the Regulations

    (a)  the person satisfies the Minister that the person passes the character test; or

    (b)  the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

    (c)  the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

    (d)  the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

    Clause 600.213 of Schedule 2 to the Regulations

    (1)  The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013, 4014, 4020 and 4021.

13. By the time the Tribunal considered the review, the following criteria became relevant:

    600.411 of Schedule 2 to the Regulations 

    If the applicant is in Australia at the time of application, the applicant must be in Australia at the time of grant.

    CONSIDERATION

14. On 4 January 2021 the delegate wrote to the applicant under s 56 of the Act to request further information. The delegate requested:

    ·Australian Federal Police (AFP) clearance National Police Check

15. The letter indicated that the applicant would not be required to provide police certificates if his total stay in Australia will not exceed 12 months. The applicant was advised to submit a Form 1023 if this was the case.

16. The delegate decision record detailed that the applicant did not provide the National Police Check. A search of the applicant’s file demonstrates he did not submit Form 1023 within the 28-day timeframe provided in the letter.

17. For the sake of completeness, the Tribunal notes that the decision record suggested that the delegate had previously written to the applicant requesting the above information on 6 November 2020. However, the request of that date related to a ‘health examination’ and not a National Police Check.

18. On 5 May 2021 Tribunal staff wrote to the applicant to request the National Police Check, as well as ‘police certificates from each country where the applicant had lived for a total of 12 months or more in the last 10 years ‘as specified in the decision record and requested prior to the Department.’ Tribunal staff did so because if the applicant provided the documents to the Tribunal, it would have been able to remit the case back to the delegate without a hearing. The letter requested the applicant provide the material by 19 May 2021.

19. The Tribunal pauses to note that, regrettably, Tribunal staff requested from the applicant ‘police certificates from each country where the applicant has lived for a total of 12 months or more in the last 10 years’ despite the s 56 request not requesting this.

20. It appears that Tribunal staff read the delegate decision record where the delegate noted that: ‘Under policy, a component of assessing a person against PIC 4001 for temporary or permanent migration is the provision of a police clearance certificate for each country in which that person has lived for 12 months or more, over the last 10 years, since turning 16 years of age’ and assumed that the delegate had asked for this information, which the delegate had not.

21. The delegate had considered the applicant’s migration history and determined that the only police clearance required was that of the National Police Check (presumably because Australia was the only place the applicant had resided for 12 months or more in the past 10 years). The decision record noted the policy because it would explain why the delegate had only requested a National Police Check from the Australian Federal Police.

22. In any event, the applicant did not provide the Tribunal with the National Police Check by 19 May 2021.

23. On 26 August 2022, the Tribunal wrote to the applicant under s 359A of the Act and invited the applicant to comment on or respond to information that would be a reason or part of the reason for affirming the decision under review. This was a new issue that would prevent the applicant from being granted the visitor visa.

24. The information was that the applicant lodged the visitor visa while he was on onshore, but that department records demonstrated he had subsequently departed Australia on 4 December 2021 and remains offshore. As he was now outside Australia, he would no longer meet cl 600.411 of Schedule 2 to the Regulations which provided that if the applicant was onshore at the time of the application for the visa, he needed to be onshore at the time of decision.

25. The invitation invited the applicant to comment on or respond to this information in writing by 9 September 2022. As detailed previously, the applicant did not comment on or respond to this information.

    FINDINGS AND REASONS

26. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

27. The evidence is that the applicant was onshore when he applied for the visitor visa on 9 June 2020. The evidence is that the applicant departed Australia on 4 December 2021 and remains offshore.

28. Given that the applicant was onshore at the time of visa application and offshore at the time a decision is being made, he does not satisfy cl 600.411 of Schedule 2 to the Regulations.

29. Further, the evidence is that the applicant was requested by the delegate to provide Australian Federal Police (AFP) clearance National Police Check by the delegate. He did not do so. The Tribunal wrote to the applicant and asked for him to provide that same National Police Check. He did not do so, nor did he claim that it would be unreasonable for him to provide the statement. The Tribunal is not satisfied that it would be unreasonable for the applicant to provide this document.

30. Given the applicant did not provide an Australian Federal Police (AFP) clearance National Police Check, and the Tribunal is not satisfied that it was unreasonable for him to provide the statement, the applicant does not satisfy Regulation 2.03AA of the Regulations.

    decision

31. The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.

    Nathan Goetz
    Member