Abdelhamed (Migration)

[2020] AATA 3287

Abdelhamed (Migration) [2020] AATA 3287 (19 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdelrahman Abdelhameed Farouk Abdelhamed

CASE NUMBER:  2003744

DIBP REFERENCE:  BCC2017/2144394

MEMBER:Rosa Gagliardi

DATE:19 May 2020

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Spouse (Provisional)) visa:

·Public Interest Criterion 4001 for the purposes of cl.100.222 of Schedule 2 to the Regulations.

Statement made on 19 May 2020 at 1:58pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – criminal history – statement from an appropriate authority – National Police Certificate issued by the Australian Federal Police – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 100.222; 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 Immigration on 29 January 2020 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) Subclass 100 visa under the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 17 June 2017. The delegate refused to grant the visa on the basis that the applicant did not meet Public Interest Criterion (PIC) 4001.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. At the time of application the applicant did not satisfy clause 100.222 which requires that he meet several public interest criteria, including Public Interest Criterion 4001. 

5. PIC 4001 required that the Department assess a person against the terms of the ‘character test’.  Under policy, a component of assessing a person against PIC 4001 for temporary or permanent migration is the provision of a police certificate for each country in which that person has lived since turning 16 years of age.  A police certificate is a statement provided by the appropriate authority that provides evidence about whether or not the person has a criminal history.  This statement is the key source of information as to a person’s character.

6. The relevant law is set out below:

   cl.100.222
   The applicant:
      (a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009, 4020 and
      4021; and
      (b) if the applicant had turned 18 at the time of application – public interest criterion
      4019.

7. As the applicant is required to satisfy PIC 4001 for the grant of the visa, regulation 2.03AA applies:

   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.

8. The Department attempted, on several occasions in late 2019, to attain from the applicant a National Police Certificate issued by the Australian Federal Police, but the applicant did not respond to the requests. 

9. The Department made its decision on 29 January 2020 to refuse the visa on the basis that the applicant did not satisfy PIC 4001 for the grant of the visa, and that subregulation 2.03AA(1) required that subregulation (2) be met unless subregulation (3) applied – which it did not.

10. The applicant has now submitted a National Police Certificate issued by the Australian Federal Police dated 12 February 2020, stating that no disclosable outcomes were recorded against the name of the applicant for all Australian jurisdictions. 

11. The Tribunal contacted the Department to ensure that there was no other outstanding matter in relation to PIC 4001 in this case.  On 19 May 2020 the Department confirmed that only the Australian Federal Police clearance had been outstanding at the time of application as the applicant’s travel history after he was granted the subclass 309 visa, did not necessitate a need for a ‘fresh’ overseas police certificate.

    CONCLUSION

12. PIC 4001 has been identified as the only outstanding criteria at the time of application.  As the applicant has now submitted his Australian Federal Police clearance, dated 12 February 2020,  the Tribunal finds that the applicant meets PIC 4001.

    DECISION

13. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Spouse (Provisional)) visa:

    ·Public Interest Criterion 4001 for the purposes of cl.100.222 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    Member