Teng (Migration)

[2022] AATA 1846

Teng (Migration) [2022] AATA 1846 (21 March 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Mengtao Teng

REPRESENTATIVE:  Mrs Hasina Abdul Rahim (MARN: 1700161)

CASE NUMBER:  2119471

HOME AFFAIRS REFERENCE(S):           BCC2021/287921

MEMBER:  Penelope Hunter

DATE:  21 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

·PIC 4001 for the purposes of cl 600.213(1) of Schedule 2 to the Regulations.

Statement made on 21 March 2022 at 3:11pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – public interest criteria PIC 4001 – Tribunal is satisfied that the applicant passes the character test – copy of the applicant’s police clearance certificate provided – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, Schedule 2, cl 600.213

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 Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant applied for the visa on 26 February 2021. The criteria for a Visitor (Class FA) 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. Relevant to the application under review they include cl 600.213(1) which requires that the visa applicant satisfy public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013, 4014, 4020 and 4021.

1. The delegate refused to grant the visa on 30 November 2021 on the basis that the applicant did not meet public interest criteria PIC 4001 as required by cl 600.213(1).

1. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to

   s 360(2)(a) of the Act.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether PIC 4001 is met. This requires the Minister, or the Tribunal in their place, to be satisfied that a visa applicant passes a 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 that the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or that the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

1. According to the decision record of the delegate, the applicant had provided a copy of his Australian National Police Certificate dated 7 December 2020, and was requested to provide copies of his overseas police clearance certificates on 13 April 2021 and on 26 August 2021. The delegate had not received any information within the requested timeframe and therefore it was found that the applicant did not satisfy PIC 4001.

1. On 12 January 2022 the Tribunal received a copy of the applicant’s police clearance certificate from the People’s Republic of China dated 10 January 2022 and certificate of translation. The evidence submitted discloses no adverse record for the applicant.

1. In light of the new evidence received, the Tribunal is satisfied that the applicant passes the character test and the requirements of PIC 4001 are satisfied for the purposes of cl 600.213(1).

1. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

DECISION

1. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

   ·PIC 4001 for the purposes of cl 600.213(1) of Schedule 2 to the Regulations.

Penelope Hunter Member