Wang (Migration)

[2024] AATA 992

Wang (Migration) [2024] AATA 992 (1 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ruize Wang

REPRESENTATIVE:  Mr Ziaullah  Zarifi

CASE NUMBER:  2315382

HOME AFFAIRS REFERENCE(S):          BCC2023/1975371

MEMBER:Wendy Banfield

DATE:1 April 2024

PLACE OF DECISION:  Canberra

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·Regulation 2.03AA(2)

Statement made on 01 April 2024 at 12:56pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – statement from an appropriate authority – Chinese Criminal Record check – Australian National Police Certificate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 500.217; 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 Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 27 March 2023. The criteria for a Student (Temporary) (Class TU) 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, 500.217 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.

5. The delegate refused to grant the visa on 15 September 2023 on the basis that the applicant did not meet reg 2.03AA because the applicant had not provided Police Clearance Certificates from his home country or Australia, or evidence showing he had attempted to obtain a Police Clearance Certificates.

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 statements by an appropriate authority that provides evidence about whether or not the person has a criminal history.

8. The issue is not whether the applicant has a criminal history, or whether the applicant would pass the ‘character test’ under s 501 of the Act, or the public interest criteria applicable to the visa the applicant applied for.

9. On 12 April 2023 the delegate sent the applicant a request to provide a Police Clearance Certificate. At the time of the delegate’s decision, the applicant had not provided the requested information, or evidence that they had attempted to obtain a Police Clearance Certificate.

10. On 5 December 2023 the applicant was requested to provide a copy of Police Clearance Certificates from China and Australia to the Tribunal. On 13 December 2023 the applicant submitted a copy of a Chinese Criminal Record check which states he has no criminal record in China, and an Australian National Police Certificate indicating the applicant has criminal convictions in Australia.

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

    DECISION

12. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

    ·Regulation 2.03AA(2).

    Wendy Banfield
    Member