Zhuang (Migration)

[2024] AATA 3737

Zhuang (Migration) [2024] AATA 3737 (22 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xuejun Zhuang

REPRESENTATIVE:  Mr Guangning Li (MARN: 1800537)

CASE NUMBER:  2422279

HOME AFFAIRS REFERENCE(S):          BCC2023/7623490

MEMBER:Anne Grant

DATE:22 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 590 visa:

·Public interest criterion 4001 for the purposes of cl 590.218 of Schedule 2 to the Regulations; and

·Regulation 2.03AA(2).

Statement made on 22 August 2024 at 9:30am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 590 visa – applicant provided a police clearance certificate from the appropriate authority in China – provided an Australian Federal Police Digital National Police Certificate – no disclosable court outcomes recorded – applicant satisfies the requirements of PIC 4001 – decision under review remitted  

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 2.03AA, Schedule 2, cl 590.218

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). The applicant applied for the visa on 31 December 2023. The delegate refused to grant the visa on 9 July 2024.

2. The delegate made the decision on the basis that evidence of criminal history was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. The issue in this case is whether PIC 4001 is met, which requires the Minister (or the Tribunal standing in the Minister’s shoes) to be satisfied that the visa applicant passes the character test; or the Minister to be satisfied that there is nothing to indicate that the visa applicant would fail to satisfy the Minister that they pass the character test; or the Minister has decided not to refuse to grant a visa to the visa applicant, despite reasonably suspecting that they do not pass the character test; or the Minister has decided not to refuse to grant a visa to the visa applicant despite not being satisfied that they pass the character test.

4. According to the Departmental file, on 14 May 2024, the applicant was requested by the Department to provide a statement by an appropriate authority in Australia and in China that provided evidence about whether or not the visa applicant has a criminal history. The delegate had received the overseas history check from China on 21 May 2024.  However they had not received an AFP certificate by the time they made the decision here under review. The delegate found that the visa applicant therefore did not satisfy PIC 4001.

5. On 15 July 2024 the visa applicant provided to the Tribunal a Notarial Certificate from the People’s Republic of China (Jiansu Province) that the visa applicant had no criminal record during her residence in China.  She also provided an Australian Federal Police Digital National Police Certificate from  the Criminal Records section of the Australian Federal Police dated 13 July 2024. This certificate states that the visa applicant did not have any disclosable court outcomes recorded against them, as at 13 July 2024.

6. On the evidence before it, the Tribunal finds that the applicant satisfies the character test and the requirements in PIC 4001 and regulation 2.03AA(2) are met for the purposes of cl 590.218 of the Migration Regulations.

7. Given the above finding, the appropriate course is for the tribunal to remit the visa application to the minister for reconsideration of the remaining criteria for the subclass 590 visa.

8. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   DECISION

9. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 590 visa:

   ·Public Interest criterion 4001 for the purposes of cl 590.218 of Schedule 2 to the Regulations; and

   ·Regulation 2.03AA(2)

   Anne Grant
   Member