Shen (Migration)

[2022] AATA 670

Shen (Migration) [2022] AATA 670 (9 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kexin Shen

REPRESENTATIVE:  Mr Xin Li (MARN: 1685374)

CASE NUMBER:  2104375

HOME AFFAIRS REFERENCE(S):          BCC2020/1176171

MEMBER:Anne Grant

DATE:9 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·Public interest criterion 4001 for the purposes of cl 600.213(1) of Schedule 2 to the regulations.

Statement made on 09 March 2022 at 1:40pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – character test – evidence of criminal history – Chinese Notarial Certificate and Australian Federal Police National Police Certificate provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 600.213; Schedule 4, Public Interest 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 19 March 2021 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 15 March 2020. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.213(1) because he did not satisfy public interest criteria (PIC) 4001.

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

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5.    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 he would fail to satisfy the Minister that he passes the character test; or the Minister has decided not to refuse to grant a visa to him, despite reasonably suspecting that he does not pass the character test; or the Minister has decided not to refuse to grant a visa to him despite not being satisfied that he passes the character test.

6.    According to the Departmental file, the applicant was requested by the Department on 23 November 2020 and 19 January 2021 to provide a statement by an appropriate authority in China and Australia that provided evidence about whether or not he has a criminal history. The delegate had not received a statement from any such authority by the time they made the decision here under review. The delegate found that he therefore did not satisfy PIC 4001.

7.    On 24 January 2022, the applicant submitted to the Tribunal a Peoples Republic of China Notarial Certificate dated 19 January 2022.  This certifies that the applicant had no criminal record in China up to 21 January 2020.  The applicant arrived in Australia and has remained here since 22 January 2020.

8.    On 31 January 2022, the applicant submitted to the Tribunal a National Police Certificate from the Australian Federal Police, Criminal Records Section stating that up to the 20 January 2022, there were no disclosable court outcomes for the applicant.

9.    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 600.213(1).

10.   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 600 visa.

DECISION

1. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

   • Public interest criterion 4001 for the purposes of cl 600.213(1) of Schedule 2 to the Regulations

   Anne Grant
   Member