Antonio (Migration)

[2023] AATA 1712

Antonio (Migration) [2023] AATA 1712 (30 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Elaine Bautista Antonio

CASE NUMBER:  2203902

HOME AFFAIRS REFERENCE(S):          BCC2020/2668071

MEMBER:Alison Murphy

DATE:30 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

·Regulation 2.03AA(2)

Statement made on 30 May 2023 at 5:19pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – applicant submitted a copy of a Certificate of Criminal Record from the Philippines – statement from the Australian Federal Police provided – no disclosable court outcomes against the applicant –– decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 November 2020. The criteria for a Visitor (Class FA) visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: reg 2.03AA(1). In this case, 600.213 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

4. Regulation 2.03AA(2)(a) requires that, if requested, the applicant has provided a statement from a relevant authority in a country where the person resides or has resided that provides evidence about whether or not the person has a criminal history. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal may waive the requirement in reg 2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

5. The delegate refused to grant the visa on 24 February 2022 on the basis that the applicant did not meet reg 2.03AA because she had not provided a police clearance from Australia, being a country in which she had resided for 12 months or more over the past 10 years, despite being requested in writing to do so.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant has provided a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

8. The applicant provided to the department a police check from the Republic of the Philippines, Department of Justice National Bureau of Investigation dated 13 August 2019. That document states that she has ‘no derogatory record’.

9. According to information contained in the delegate’s decision record, on 19 October 2021, 23 December 2021 and 21 January 2022 the Department requested in writing the applicant also provide a statement by an appropriate authority in Australia that provides evidence about whether or not she has a criminal history. Other correspondence from the Department also requested she provide a statement from an appropriate authority in the Philippines. By the time of the delegate’s decision, the applicant had failed to provide such any statement from the authorities in Australia.

10. At the Tribunal hearing on 8 March 2023, the applicant advised that she had applied for an AFP police clearance certificate and an updated police clearance certificate from the authorities of the Philippines and the Tribunal adjourned the review to allow the results of those checks to be provided. She also provided the Tribunal with a copy of an AFP National Police Certificate dated 27 October 2021, which was more than twelve months old by the time of the Tribunal hearing. It appears that certificate was not provided to the Department.

11. The applicant has since provided the Tribunal with the updated statements from the authorities of the Philippines and Australia. A multi-purpose police clearance certificate from the Department of Justice, National Bureau of Investigation of the Republic of the Philippines dated 29 May 2023 and valid until 29 May 2024 states that the applicant has no derogatory record. A statement from the Australian Federal Police dated 18 March 2023 certifies that there are no disclosable court outcomes against the applicant.

12. The applicant has provided a statement from the appropriate authorities of Australia and the Philippines and therefore meets reg 2.03AA(2)(a).

13. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in reg 2.03AA(2)(b) does not apply.

    CONCLUSION

14. On the basis of the above findings, the applicant meets reg 2.03AA(2).

    DECISION

15. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

    ·Regulation 2.03AA(2).

    Alison Murphy
    Member