Zeng (Migration)

[2023] AATA 184

Zeng (Migration) [2023] AATA 184 (31 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hauhua Zeng

CASE NUMBER:  2200180

HOME AFFAIRS REFERENCE(S):          BCC2020/2540909

MEMBER:Stephen Witts

DATE:31 January 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 31 January 2023 at 9:40am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – evidence of criminal history – police certificate not provided from home country – decision under review affirmed         

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 December 2021 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 27 October 2020. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.213.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.213 because the delegate contended that the applicant did not meet the criteria set out in the relevant Migration Regulations.

5. On 19 December 2022 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 31 January 2023. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. Prior to the Hearing the Tribunal sent system generated SMS reminder notices to the applicant’s phone number.

6. It is the practice of the Tribunal to conduct “preliminaries” prior to the commencement of the hearing. These preliminaries are a courtesy to review applicants and basically explain the process of the hearing which will commence at a later time. These “preliminaries” are not part of the hearing, and the presiding member does not attend during this process as it is conducted by administrative staff of the Tribunal. In accordance with that procedure the Tribunal notes that the applicant was contacted three times prior to the hearing on his nominated number and did not respond.

7. On that basis the review applicant did not appear before the Tribunal for the phone hearing on the day and at the scheduled time. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with relevant provisions in the Act and the invitation has not been returned to sender. In these circumstances, and pursuant to the relevant section in the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant satisfied subclause 600.213(1) which reads that the applicant must satisfy public interest criteria 4001,4002,4003,4004,4005,4011, 4013,4014,4020, and 4021.

10. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision by the applicant which stated that the applicant did not satisfy the above clause in that he was requested by the Department in writing on 9 August 2021 and 14 October 2021 to provide a statement provided by an appropriate authority in China that provides evidence about whether or not he has a criminal history. The applicant was advised that he must respond to this request within 28 days. It was noted by the Department no such response was received.

11. On that basis the Department considered whether sub regulation 2.03AA applied and made a decision that as the applicant had not provided any information indicating that he had attempted to obtain the material requested and that as there were no other issues in the department’s opinion indicating that it was not reasonable to provide this statement it made a finding that but sub regulation did not apply and therefore made a decision that the applicant did not satisfy PIC 4001.

12. The Tribunal notes that it received an email from the applicant dated 19 December 2022 stating that he would like to withdraw his application. The Tribunal notes that it provided the applicant with an opportunity to process this withdrawal but that he did not take up this opportunity so therefore the Tribunal must allow this matter to go to hearing.

13. The Tribunal notes that as above the applicant did not present to the hearing on 31 January 2023. The Tribunal also notes that no evidence has been provided to it in regard to the original above request by the Department to provide a criminal check history.

14. On that basis, after careful consideration, the Tribunal finds that the applicant has not provided any evidence that he has fulfilled the criteria for the grant of the visa.

    DECISION

15. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Stephen Witts
    Member