Seema Hewage (Migration)

[2024] AATA 3956

Seema Hewage (Migration) [2024] AATA 3956 (17 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nimesha Madurangi Silva Seema Hewage

REPRESENTATIVE:  Mr Ravi V Shah (MARN: 2117164)

CASE NUMBER:  2311697

HOME AFFAIRS REFERENCE(S):          BCC2021/1608176

MEMBER:Wendy Banfield

DATE:17 September 2024

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 17 September 2024 at 3:35pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – criminal history – police clearance certificate and character assessments – Intervention Order – decision under review affirmed  

LEGISLATION

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

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 18 August 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, cl500.217 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 18 July 2023 on the basis that the applicant did not meet reg 2.03AA because the applicant did not provide a completed Form 80 or police clearance certificates for each country in which the person has lived for 12 months or more, over the last 10 years.

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

   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 and a completed Form 80.

   Has the applicant provided a statement from an appropriate authority?

8. According to the Department’s decision of 18 July 2023, on 3 March 2023, the applicant was requested to provide Police Clearance certificate(s) (for each country in which that person has lived for 12 months or more, over the last 10 years). The request included an updated Australian Federal Police certificate issued in all other names or aliases the applicant has been known by, in particular, to include the name of Nimesha SILVA. The applicant was provided with 28 days to provide this information.

9. On 17 May 2023, the applicant was provided with 28 days to provide further information. This included a request for the applicant to provide the following:

   ·     Personal particulars for character assessment - Online Form 80

   ·     Police Clearance certificate(s) (for each country in which that person has lived for 12 months or more, over the last 10 years)

10. This request also included an updated Australian Federal Police certificate issued in all other names or aliases the applicant has been known by, in particularly to include the name of Nimesha SILVA.

11. At the date of decision, the Department had not received a response to either request.

12. Prior to the Tribunal hearing the applicant submitted the following relevant evidence:

    ·     A Chinese Notarial Certificate in the name of Nimesha Madurangi Silva Seema Hewage dated 8 September 2015.

    ·     A written statement 19 July 2022 about being unable to obtain a Police Clearance letter from China.

    ·     Court documents regarding an Intervention Order against Nimesha Silva.

    ·     Completed Form 80 Personal particulars for assessment including character assessment dated 5 August 2023.

    ·     A statutory declaration dated 5 August 2023 regarding the applicant’s name variations in her identity documents.

    ·     A statutory declaration dated 1 August 2023 stating the applicant has never been convicted of serious offences.

13. The applicant gave evidence that she studies in China from 10 April 2013 to 19 January 2014; 26 February 2014 to 6 January 2015 and from 21 February 2015 to 19 July 2017. The Minister asked the applicant to provide Police Clearance certificate(s) for each country in which that person has lived for 12 months or more, over the last 10 years. However, the applicant has not provided a Police Clearance certificate for China despite having lived there for more than 12 months in the last 10 years.

14. The applicant was asked to provide an updated Australian Federal Police certificate issued in all other names or aliases the applicant has been known by, in particular to include the name of Nimesha Silva. The applicant has not provided an AFP certificate as requested.

15. The applicant has not provided a statement from an appropriate authority and therefore does not meet reg 2.03AA(2)(a). The Tribunal has therefore considered whether it would not be reasonable for the applicant to provide the statement, and whether the requirement to provide it should be waived.

16. In her written submission regarding a police clearance from China, the applicant advised as follows:

    To obtain the Chinese Police Clearance Letter, I contacted the Chinese Embassy here in Australia and they directed me to contact the Chinese Embassy in Sri Lanka as my China student visa was processed through the Chinese consulate in Sri Lanka.

    Then I contacted the Chinese Embassy in Sri Lanka. However, they advised me to reach out to my university in China, as the Chinese embassy does not assist with Police Clearance Applications. I wrote the University several times and tried to reach out to my colleagues in China to obtain the police clearance. As a final resort, I also tried the guidelines in the home affairs website but still was not able to sort out the clearance till now.

    I have tried all possible available options to obtain the requested Police Clearance Letter and all my efforts were unsuccessful. Considering my genuine effort in obtaining the police clearance from China, I am kindly requesting to grant my student visa to complete the remaining studies in Australia and re-join with my family back in Sri Lanka.

17. As was discussed at the hearing in the matter, the Tribunal notes there are instructions online for people to follow in seeking to obtain police clearance letters from China. This includes information on who can issue such certificates and how to apply. The Tribunal is not satisfied the applicant has followed correct procedure in seeking to obtain police clearance from China.  

18. The applicant did not provide satisfactory reasons why she has not submitted an updated AFP certificate in the name of Nimesha Silva. The Tribunal notes the applicant is currently in Australia and would be able to obtain a current AFP certificate in all names by which she has been known, including Nimesha Silva which appears on court documents regarding an Intervention Order issued in that name.

19. The Tribunal considered the applicant’s submissions but is not satisfied that it is not reasonable for the applicant to provide the requested statements from an approved authority. The waiver in reg 2.03AA(3) does not apply. Therefore, as the statements have not been provided, the applicant does not meet reg 2.03AA(2)(a).

    Conclusion

20. On the basis of the above findings, the applicant does not meet reg 2.03AA(2).

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Wendy Banfield
    Member