Soe (Migration)

[2023] AATA 3563

Soe (Migration) [2023] AATA 3563 (24 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thiha Soe

CASE NUMBER:  2309806

HOME AFFAIRS REFERENCE(S):          BCC2023/67009

MEMBER:P. Maishman

DATE:24 October 2023

PLACE OF DECISION:  Perth

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)(a).

Statement made on 24 October 2023 at 12:05pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – evidence of criminal history – genuine and current AFP national police check provided to tribunal – no more than 12 months in any other country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(1), (2)(a), Schedule 2, cl 500.217, 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 Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 March 2023. 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, cl 500.217 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 13 June 2023 on the basis that the applicant did not meet reg 2.03AA because he had not provided a police certificate or other statement from the Australian Federal Police about whether he 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. The applicant declared on his visa application that she had visited a number of countries but not accrued more than 12 months in any country she visited in the 10 years prior to the visa application date.

9. On 21 September 2023 the applicant provided an Australian Federal Police National Police Check certificate dated 6 June 2023. The Tribunal is satisfied that this police check is genuine and current and that it is valid for the purposes of r.2.03AA(2)(a).

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

    Conclusion

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

    DECISION

12. 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)(a).

    P. Maishman
    Member