Wang (Migration)

[2022] AATA 1759

Wang (Migration) [2022] AATA 1759 (12 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yanliang Wang

CASE NUMBER:  2201121

HOME AFFAIRS REFERENCE(S):          BCC2020/2752287

MEMBER:Alan McMurran

DATE:12 April 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:

·Regulation 2.03AA(2)

Statement made on 12 April 2022 at 1:09pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – criminal history – statement by an appropriate authority – notarised copy of a Chinese certificate – National Police Certificate from the Australian Federal Police – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 600.213; Schedule 4, PIC 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 Home Affairs to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 3 December 2020. 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.

3. 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. 600.213(1) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

4. 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.

5. The delegate refused to grant the visa on 21 January 2022 on the basis that the applicant did not meet reg 2.03AA because the applicant had not provided a statement provided by an appropriate authority in a country where the applicant resides (China).  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. The Department wrote to the applicant on 9 March 2021, 23 June 2021, 30 August 2021, 17 November 2021 and 23 December 2021, asking him to provide a statement by an appropriate authority in Australia / other country that provides evidence about whether or not the applicant has a criminal history. The Department did not receive a response in time.

9. On 29 January 2022, at the time of filing, the applicant provided the Tribunal the following statement:

   “My name is Shuai Wang and I am writing this letter to respond for the recent refusal of my father’s 600 visa application. I have been responsible for helping my father lodge his 600 visa. According to the refusal letter I had received, such decision made was based on the required documents had not been provided in a timely manner.

   I am regretfully to say the reason for this was because I mistakenly thought the overseas police check was not necessary since the applicant has been staying within Australia for the past two years due to COVID-19. Therefore, I only prepared the Australian Police Check instead.

   Meanwhile, I was overwhelmed and distracted by my wife’s accident, she was seriously injured and had to be hospitalized for surgery last November. (I can provide the hospital discharge note if it’s needed.) Since then, I was not in a clear state and overlooked the requirements for this visa application.

   If it has not been the refusal letter received on the 21^st of Jan this year, I did not realize this. I have urgently contacted my family members overseas and asked them to obtained police check on my father’s behalf. You could find it been uploaded along with this statement.

   Again, I sincerely apologize for all the inconveniences were caused by my unintentional act. Could you please kindly re-consider our case and grant my father’s visa application as my family really needs the assistance and support from him during this difficult time. Thank you kindly in advance for considering my appeal and I hope to hear a positive response from you.”

10. The applicant’s uploaded statement included a notarised copy of a Chinese certificate stating the applicant has “No criminal record”.

11. On 2 February 2022, the Tribunal sent an email outreach to the applicant requesting a copy of a National Police Certificate from the Australian Federal Police (“AFP”).

12. On 2 February 2022, the applicant emailed the Tribunal a copy of an AFP certificate dated 9 August 2021.

    Has the applicant provided a statement from an appropriate authority?

13. The Tribunal is satisfied and finds that the applicant has now provided statements from an overseas/ Chinese authority and from the AFP as requested.

    Conclusion

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

    DECISION

15. 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:

    ·Regulation 2.03AA(2).

    Alan McMurran
    Member