Sun (Migration)

[2021] AATA 2660

Sun (Migration) [2021] AATA 2660 (19 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yuyao Sun

CASE NUMBER:  2101536

HOME AFFAIRS REFERENCE(S):          BCC2018/1238292

MEMBER:Kira Raif

DATE:19 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

·Regulation 2.03AA(2)

Statement made on 19 May 2021 at 2:25pm

CATCHWORDS
MIGRATION –New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 – police clearance certificates from Australia and China provided – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA(2), Schedule 2, cl 461.223

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 New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 March 2018. The delegate refused to grant the visa on 8 February 2021 on the basis that the applicant did not meet reg 2.03AA because the applicant did not provide the police clearance certificates.

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

   Relevant law

4. The criteria for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) 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.

5. 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. 461.223 of Schedule 2 of the Regulations requires the applicant to meet PIC4001. The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

6. 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.

   Has the applicant provided a statement from an appropriate authority?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the delegate wrote to the applicant requesting her to provide the police clearance certificates from China and Australia. the applicant has not done so and the delegate was not satisfied the requirements of PIC 4001 were met, for the purpose of cl. 461.223. In her submission to the Tribunal the applicant explains that it took a long time to obtain the police certificate from the Chinese authorities and to complete the medical examinations.

8. The applicant provided to the Tribunal her police clearance certificates from Australia and China. Both show no disclosable court outcomes. The Tribunal finds that  the delegate requested the applicant to provide the relevant statements from authorities in Australia and China and she has done so. As the applicant has provided statements from appropriate authorities, she therefore meets reg 2.03AA(2)(a).

   Conclusion

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

   DECISION

10. The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

    ·Regulation 2.03AA(2).

    Kira Raif
    Senior Member