Song (Migration)

[2022] AATA 766

Song (Migration) [2022] AATA 766 (10 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yan Song

REPRESENTATIVE:  Mr Minghuang Yan (MARN: 1572947)

CASE NUMBER:  2118980

HOME AFFAIRS REFERENCE(S):          BCC2020/1519399

MEMBER:Anne Grant

DATE:10 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 10 March 2022 at 1:00pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – character test – evidence of criminal history – Peoples Republic of China 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 Criteria 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 9 December 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 10 May 2020.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include 600.213(1), which requires the visa applicant to satisfy public interest criteria 4001, 4002, 4003, 4005,4013, 4014, 4020 and 4021.

1. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.213(1) because they did not satisfy public interest criteria (PIC) 4001.

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

3. 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 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 the visa applicant would fail to satisfy the Minister that they pass the character test; or the Minister has decided not to refuse to grant a visa to the visa applicant, despite reasonably suspecting that they do not pass the character test; or the Minister has decided not to refuse to grant a visa to the visa applicant despite not being satisfied that they pass the character test.

8.    According to the Departmental file, on 30 July 2020, 31 August 2020 and 5 July 2021, the applicant was requested by the Department to provide a statement by an appropriate authority in China and Australia that provided evidence about whether or not the visa applicant has a criminal history. The delegate had not received those statement by the time they made the decision here under review. The delegate found that the visa applicant therefore did not satisfy PIC 4001.

9.    On 20 December 2021, the visa applicant submitted a Notarial Certificate from the Dalian Notary Public Office in Liaoning Province, Peoples Republic of China.  This Certificate states that there is no record of the visa applicant committing offences against the criminal laws in China up to 10 December 2021.

10.   On 20 September 2021, the applicant submitted to the Tribunal a National Police Certificate from  the Criminal Records section of the Australian Federal Police dated 11 December 2021. This certificate states that the visa applicant did not have any disclosable court outcomes recorded against them, as at the  10 December 2021.

11.   On the evidence now 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).

12.   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