Yanqiu (Migration)

[2020] AATA 5410

Yanqiu (Migration) [2020] AATA 5410 (20 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yang Yanqiu

CASE NUMBER:  2003944

DIBP REFERENCE(S):  BCC2017/4381355

MEMBER:Justine Clarke

DATE:20 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

·Regulation 2.03AA(2)

Statement made on 20 October 2020 at 1:10pm

CATCHWORDS

MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – Chinese police certificate – notarized Chinese Police Clearance provided upon review – decision under review remitted 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 461.223; Schedule 4, Public Interest Criterion 4001; r 2.03

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 applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa under s.65 of the Migration Act 1958 (the Act).

2. On 17 November 2017, the applicant applied for the visa. The criteria for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) 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. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: r.2.03AA(1). In this case, cl.461.223 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. Therefore, the applicant is required to satisfy the criterion in r.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. The Tribunal may waive the requirement in r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3).

5. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

6. The applicant provided the Tribunal with a copy of the primary decision. On 28 February 2020, the delegate refused to grant the visa on the basis that the applicant did not meet r.2.03AA because the delegate found that the applicant had not provided a police certificate or other statement from an appropriate authority in China and thus did not meet r.2.03AA(2)(a). In addition, the delegate found that r.2.03AA(3) did not apply because the applicant had not provided any claims or evidence to satisfy the delegate that it was not reasonable for the applicant to provide a police certificate or statement.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant has provided a statement by an appropriate authority in China that provides evidence about whether the person has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

9. The primary decision sets out the chronology of events. For present purposes it is sufficient to note that, as at 28 February 2020, which is when the delegate made the refusal decision, the applicant had not provided police certificate/s from China pursuant to the Department’s written requests commencing on 18 September 2019.

10. A couple of months after having applied to the Tribunal for review of the primary decision, the Tribunal wrote to the applicant on 11 June 2020 requesting her to provide a police clearance from China, ‘as defined in the Department’s Decision Record’ by 11 July 2020. Subsequently, the applicant requested and was granted two extensions of time in which to provide the police clearance from China

11. The Tribunal notes that the Department’s website provides information about what is required from a police check in the People’s Republic of China. It states that the relevant document is the ‘Notary Certificate of No Criminal Convictions’, and explains that, first, an applicant must obtain the ‘No Criminal Convictions Certificate’ from their local police station and provide this to the Public Notary Office to apply for the ‘Notary Certificate of No Criminal Convictions’.

12. On 3 July 2020, the applicant submitted a ‘notarized Chinese Police Clearance’, dated 2 July 2020 and an English translation of the same.

13. The Tribunal finds that the applicant has provided a statement from the appropriate authority in China and therefore meets r.2.03AA(2)(a).

    Conclusion

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

15. On the basis of the above findings, the applicant meets r.2.03AA(2).

    DECISION

16. The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

    ·Regulation 2.03AA(2).

    Justine Clarke
    Member