Zhang (Migration)

[2022] AATA 2724

Zhang (Migration) [2022] AATA 2724 (14 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Qin Zhang

CASE NUMBER:  2206454

HOME AFFAIRS REFERENCE:               BCC2020/1435637

MEMBER:Rosa Gagliardi

DATE:14 June 2022

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the application with the direction that the applicant meets PIC 4001 on the condition that the Notarial Certificate has been submitted in the correct form.

Statement made on 14 June 2022 at 12:12pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – character test – statement from an appropriate authority – Notarial Certificate from China – 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 on 25 April 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 25 April 2020. The delegate refused to grant the visa on the basis that the applicant did not meet aspects of the character test.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant is required to satisfy clause 600.213 in Schedule 2 of the Migration

   Regulations.  This clause provides:
   
   
   600.213
   (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013,
   4014, 4020 and 4021.
   (2) If the applicant has not turned 18, the applicant also satisfies public interest criteria 4012, 4017 and 4018.

6. Public Interest Criteria (PIC) 4001 requires the assessment of the applicant against the terms of the 'character test'.  As the applicant is required to satisfy PIC 4001 for the grant of the visa, regulation 2.03AA applies. This regulation states:
   
   

   Reg. 2.03AA – 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.
   
   

7. While the Department wrote to the applicant to provide the requisite documentation, the applicant did not do so in the required format and within the required timeframe.

1. At the time of decision, the applicant has now provided a Notarial Certificate to indicate the applicant did not have any criminal convictions in China as at 27 April 2022.

   DECISION

2. The Tribunal remits the application with the direction that the applicant meets PIC 4001 on the condition that the Notarial Certificate has been submitted in the correct form.
   
   Rosa Gagliardi
   Member