1511209 (Migration)

[2016] AATA 4734

1511209 (Migration) [2016] AATA 4734 (30 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Maryam Afzali

CASE NUMBER:  1511209

DIBP REFERENCE(S):  OSF2012000953

MEMBER:Lisa Lo Piccolo

DATE:30 November 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa

Statement made on 30 November 2016 at 2:57pm

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 on 21 July 2015 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) Subclass 100 visa under s.65 of the Migration Act 1958 (the Act).

2.The visa applicant applied for the visa on 12 December 2012. The delegate refused to grant the visa on the basis that the applicant did not provide a police clearance or other statement provided by an appropriate authority in Australia.  The delegate was therefore not satisfied that the applicant met the prescribed criteria in r.2.03AA and cl.100.222. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

1. On 15 November 2016, the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act1958 inviting the applicant to provide information, namely; a police clearance from Australia and any other country in which you have lived for 12 months or more in the last 10 years since turning 16 years of age.  The letter then stated as follows:

   This information, in writing, should be received by 29 November 2016. …If you cannot provide the information by 29 November 2016, you may ask us for an extension of time in which to provide the information. If you make such a request, it must be received by us before 29 November 2016 …

   If we do not receive the information within the period allowed or as extended, we may
   make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

2. The Tribunal has not received a response to that invitation as of the date of this decision.

3. The Tribunal is satisfied that the applicant was sent an invitation to provide further information under section 359(2) of the Act. The invitation, dated 15 November 2016, was sent to the applicant’s authorised recipient and representative, to the last email address provided to the Tribunal by the recipient in connection with the review (s.379A(5)(d) of the Act). Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action (section 359C(1)).

4. The Tribunal has found that the applicant did not provide further information within the prescribed period. In these circumstances, the applicant is not entitled to appear before the Tribunal (section 360(3)).

5. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

6. The Tribunal has decided to proceed to decision without taking further steps to obtain the information. A decision-maker is not required to make the applicant's case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. In addition, the applicant was represented in relation to the review by his registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets Regulation 2.03AA and Public Interest Criterion (PIC) 4001.

Does the applicant meet Regulation 2.03AA?

Relevant law

1. One of the criteria for the grant of a Subclass 100 visa is cl.100.222 which requires that the applicant meets Public Interest Criteria including PIC 4001. Where a person is required to satisfy PIC 4001 for the grant of a visa, there are additional criteria prescribed under r.2.03AA that must be met for the grant of visa. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s character and criminal history. The additional criterion in r.2.03AA applies to all current applications. 

2. Regulation 2.03AA(1) states that, in addition to the criteria prescribed by Regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or PIC 4002 for the grant of a visa, the criterion in sub regulation (2) is prescribed.

3. Regulation 2.03AA(2) provides that 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;

Does the applicant meet Regulation 2.03AA?

1. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the delegate contacted the applicant on several occasions requesting her to provide police clearance certificates from Australia.  It appears the applicant failed to provide her Australian police clearance certificate and as a result, this was the basis upon which his application was refused.

2. Despite the Tribunal’s request in its 359(2) letter dated 15 November 2016, the applicant has not provided the Tribunal with any information that she has applied for a police clearance.  She also has not provided the Tribunal with a copy of the said police clearance.

3. Accordingly, the Tribunal is satisfied that the Minister requested a statement provided by an appropriate authority in a country where a person resides, or has resided, that provides evidence about whether or not the person has a criminal history.  The Tribunal is not satisfied that the applicant has provided evidence about whether or not the person has a criminal history. The Tribunal is therefore not satisfied that the applicant meets r.2.03AA(2).

4. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

5. The Tribunal notes that as the applicant has not provided the Australian police certificate issued by the Australian Federal Police, the Tribunal is unable to assess whether the applicant meets PIC 4001 for the purposes of cl.100.222.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa

Lisa Lo Piccolo
Member