Arban (Migration)

[2023] AATA 222

Arban (Migration) [2023] AATA 222 (10 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Marian Obel Arban

REPRESENTATIVE:  Mr Jesus Icao

CASE NUMBER:  2111440

HOME AFFAIRS REFERENCE(S):          BCC2020/2556288

MEMBER:Naomi Schmitz

DATE:10 January 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 10 January 2023 at 9:55am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Australian police clearance certificate and penal certificate from the Philippines provided – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, r 2.03AA(2)

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 29 October 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, cl.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. On 12 November 2020 and 8 June 2021, the Department requested in writing that the applicant provide a statement by an appropriate authority in Australia and any other country where the applicant has resided that provides evidence of her criminal history (if any). The applicant was also requested to undergo an immigration health examination and provide a medical check result. The applicant did not provide a statement or any evidence in response to the Department’s requests.

6. On 10 August 2021, the delegate refused to grant the visa on the basis that the applicant did not meet reg 2.03AA because the applicant failed to provide her Australian Federal Police National Police Certificate and overseas penal certificate. The delegate also referred to the failure to provide a medical check result. The applicant seeks a review of the delegate’s decision.

7. On 13 December 2022, the Tribunal invited the applicant under s.360(1) of the Act to appear at a Tribunal hearing via Microsoft Teams commencing at 9:00am on 11 January 2023 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

8. On 23 December 2022 the representative filed various documents referred to in paragraph [13] below.

9. On 9 January 2023, the Tribunal considered the information provided by the representative and was satisfied that based on the information available to it, it could make a decision favourable to the applicant without proceeding to a hearing, pursuant to s.360(2)(a) of the Act. On 9 January 2023, the Tribunal wrote to the representative and advised the same and the hearing was cancelled.

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

    consideration of claims and evidence

11. The primary decision record, a copy of which the applicant provided to the Tribunal, indicates that the applicant failed to provide her Australian Federal Police National Police Certificate, overseas penal certificate and medical check result upon request of the delegate.

12. On 13 December 2022, the Tribunal invited the applicant to provide by 28 December 2022 the following information:

    ·A statement provided by an appropriate authority in Australia or any other country where the person resides, or has resided, for a total of 12 months or more, in the last ten years since turning 16 years, that provides evidence about whether or not the person has a criminal history (ie. police clearance).

    Police certificates are valid for 12 months from the issue date

13. On 23 December 2022, the applicant provided to the Tribunal an Australian Federal Police National Police Certificate and penal certificate from the Philippines both dated 15 December 2022 showing that the applicant has no criminal record. The applicant also provided evidence that she has undertaken a medical examination and the medical check result.

14. The representative in submissions explained that at the time of visa application, the applicant had previously obtained an Australian police clearance certificate and penal certificate from the Philippines and had undertaken a medical examination. At the time of lodgement the applicant believed she had successfully uploaded the documents with the assistance of her de facto partner to her IMMI account, but subsequently became aware that the documents were not received upon her visa refusal. Various documents were submitted confirming the same. The Tribunal accepts that the applicant erroneously believed she had lodged the relevant documents at the time of application.

15. As the applicant has provided a statement from the appropriate authorities, she therefore meets reg 2.03AA(2)(a).

    decision

16. 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).

    Naomi Schmitz
    Member