Tao (Migration)

[2020] AATA 2982

Tao (Migration) [2020] AATA 2982 (15 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jianyu Tao

VISA APPLICANTS:  Mr Chen Tao
Ms Ping Liu

CASE NUMBER:  1913172

DIBP REFERENCE(S):  2014/063315

MEMBER:Christine Kannis

DATE:15 July 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 143 visa:

·Regulation 2.03AA(2)

Statement made on 15 July 2020 at 6:49am

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – criminal history statement – notarial certificates from home country provided to tribunal – no criminal record – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(2), Schedule 2, cll 143.224(a), 143.229, 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 Immigration to refuse to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 19 September 2014. The criteria for a Contributory Parent (Migrant) (Class CA) visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. The delegate refused to grant the visas on the basis that the first named visa applicant did not satisfy cl.143.224(a) and the second named visa applicant did not satisfy cl.143.229.  These requires, among other things, that a visa applicant satisfies Public Interest Criterion 4001 (PIC 4001). Where a person is required to satisfy PIC 4001 additional criteria prescribed under r.2.03AA must be met.

4. No hearing was held in this case because the Tribunal determined it was able to make a favourable decision on the materials before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. PIC 4001 refers to a character test under the Act. Most visa subclasses provide that the Minister must be satisfied that the visa applicant meets the requirements of PIC 4001 as a criterion for the grant of the visa. A visa applicant will satisfy PIC 4001 if they pass the or the Minister has decided not to refuse to grant a visa under section 501 of the Act, despite the person not satisfying the character test.

6. Where a person is required to satisfy PIC 4001 for the grant of a visa, additional criteria are prescribed under r.2.03AA that must be met for the grant of visa. These criteria require an applicant to provide requested documentation or information relating to the applicant’s character and criminal history, and thus the criteria enables visa applications to be refused as a direct consequence of non-provision of the required documentation.

7. Specifically, regulation 2.03AA requires that where the Minister has requested certain documents or information, the person has provided the documents or information. The documents or information that can be requested are as follows:

   (2) (a) a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history; and

   (b) a completed approved form 80.

8. Under r.2.03AA (3), the Minister (or Tribunal) may waive the requirement to provide a statement from the appropriate authority (r.2.03AA (2)(a)) where satisfied that it is not reasonable for the applicant to do so.

   Do the visa applicants meet Regulation 2.03AA?

9. The visa applicants provided to the Tribunal a copy of the primary decision record. It indicates that the delegate requested the visa applicants to provide police clearance certificate from the Peoples Republic of China and that the visa applicants failed to provide the police clearance certificates. As a result, the applications for the visas were refused.

10. The visa applicants have now provided to the Tribunal notarial certificates from the Notary Public Office of the Chengdu region stating that they each did not have a criminal record up to 1 June 2020.

11. The Tribunal is satisfied that the Minister requested statements provided by an appropriate authority in a country where a person resides, or has resided, that provides evidence about whether or not the person has a criminal history. The Tribunal is satisfied that the visa applicants have now provided to the Tribunal copies of statements provided by an appropriate authority. The Tribunal is satisfied that the visa applicants meet r.2.03AA(2) and therefore meet r.2.03AA.

12. There is no evidence that the delegate made a request for the visa applicants to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

13. On the basis of the above findings, the Tribunal is satisfied that the visa applicants meet r.2.03AA(2) and the appropriate course of action is to remit the matter to the Minister to consider the remaining criteria for the visas.

    DECISION

14. The Tribunal remits the applications for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the direction that visa applicants meet the following criteria for a Subclass 143 visa:

    ·Regulation 2.03AA(2).

    Christine Kannis
    Member