Tang (Migration)

[2023] AATA 444

Tang (Migration) [2023] AATA 444 (27 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chengting Tang

REPRESENTATIVE:  Mr Neeraj Sharma (MARN: 0746230)

CASE NUMBER:  2300365

HOME AFFAIRS REFERENCE(S):          BCC2018/1096997

MEMBER:David Crawshay

DATE:27 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 820 visa:

·Regulation 2.03AA(2)

Statement made on 27 February 2023 at 9:43am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal history – Chinese Notarial Certificate provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.223; 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 Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 8 March 2018. The criteria for a Partner (Temporary) (Class UK) 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.

2. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002. In this case, cl.820.223 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. The applicant is therefore required to satisfy the criterion in r.2.03AA(2) which requires that, if requested, the applicant provides 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 applicant completed a Form 80 on 26 February 2018. The Tribunal may waive the requirement in r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

3. The delegate refused to grant the visa on 21 December 2022 on the basis that the applicant did not meet r.2.03AA because she had not provided a statement from an appropriate authority in China that provided evidence about whether or not she had a criminal history.

4. On 20 February 2023, the Tribunal received a copy of a certificate titled “Notarial Certificate” and dated 31 January 2023. The certificate stated that it was from the “Zijin Notary Public Office of Nanjing City”. It stated that the applicant had no criminal record. The Tribunal notes that a National Police Check from the AFP dated 4 March 2022 has already been provided, although a later check dated 31 January 2023 was also provided.

5. The Tribunal is satisfied that all of the aforementioned police checks are genuine and current. It therefore accepts that they are valid for the purposes of r.2.03AA(2)(a). In light of the above, the applicant meets r.2.03AA(2)(a) and because she has already submitted a Form 80, she meets r.2.03AA(2)(b). Regulation 2.03AA(2) is satisfied in its entirety.

   decision

6. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 820 visa:

   ·Regulation 2.03AA(2).

   David Crawshay
   Member