Wang (Migration)

[2022] AATA 2016

Wang (Migration) [2022] AATA 2016 (10 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Zhenjuan Wang

REPRESENTATIVE:  Ms Jie Zhan (MARN: 0639485)

CASE NUMBER:  2205458

HOME AFFAIRS REFERENCE:               BCC2020/1329230

MEMBER:Rosa Gagliardi

DATE:10 June 2022

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the application with the direction that the applicant meets PIC 4001 for the purposes of cl.600.213(1).

Statement made on 10 June 2022 at 2:21pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – character test – evidence of criminal history – Chinese 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; 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 on 22 March 2022 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 7 April 2020. The delegate refused to grant the visa on the basis that the applicant did not meet certain aspects of the character test.

3. The Tribunal now has information before it that would permit it to proceed to decision on the basis of the information before it.

4. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is required to satisfy subclause 600.213 (1), which reads:

(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013, 4014, 4020 and 4021.

1. Specifically, at the time of application the applicant did not satisfy public interest criterion (PIC) 4001 which requires a delegate to assess a person against the terms of the ‘character test’. Under policy, a component of assessing a person against PIC 4001 for temporary or permanent migration is the provision of a police clearance certificate for each country in which that person has lived for 12 months or more, over the last 10 years, since turning 16 years of age. A police clearance certificate is a statement provided by the appropriate authority that provides evidence about whether or not the person has a criminal history. This statement is a key source of information as to a person’s character.

2. As the applicant is required to satisfy PIC 4001 for the grant of the visa, regulation 2.03AA applies. This regulation states:
   
   

   Criteria applicable to character tests and security assessments
   (1) In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is
   required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in
   subregulation (2) is prescribed.
   (2) If the Minister has requested the following documents or information, the person has
   provided the documents or information:
   (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;
   (b) a completed approved form 80.
   Note: For paragraph (a), an example of an appropriate authority is a police force.
   (3) The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that
   it is not reasonable for the applicant to provide the statement.

3. The applicant was requested by the Department on several occasions to submit an overseas penal clearance by an appropriate authority in Australia/other country that provides evidence about whether or not the applicant has a criminal history. The applicant did not respond within the requisite time frame.

4. At the time of review the applicant has now provided a copy of a Chinese notarial certificate indicating that as at 18 April 2022 the applicant did not have a criminal record in China.  She has also provided an Australian Federal Police National Police Certificate indicating that as at 3 May 2022 the applicant did not have any disclosable court outcomes recorded in any jurisdiction in Australia.

   DECISION

5. The Tribunal remits the application with the direction that the applicant meets PIC 4001 for the purposes of cl.600.213(1).

   Rosa Gagliardi
   Member