Bah (Migration)

[2024] AATA 222

Bah (Migration) [2024] AATA 222 (6 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ahmadu Bah

VISA APPLICANTS:  Mrs Salamatu Bah
Miss Haja Yayeh Sorie Bah

REPRESENTATIVE:  Mrs Joanne Kirsty Cotton-Odgaard
(MARN: 1679914)

CASE NUMBER:  2321067

DIBP REFERENCE(S):  BCC2018/2088877

MEMBER:Katie Malyon

DATE:6 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·Regulation 2.03AA(2).

Statement made on 06 February 2024 at 1:42 pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – criminal history – Sierra Leone Police Clearance Certificates provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 309.225; Schedule 4, Public Interest Criterion 4001; r 2.03

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 on 13 October 2023 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).

2. The first named visa applicant, Sierra Leone national Mrs Salamatu Bah, applied for the visa on 14 May 2018 on the basis of her relationship with her sponsor, the review applicant Mr Ahmadu Bah. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). Criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations).  The primary criteria must be satisfied by at least one applicant.  Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

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 309.225 of Schedule 2 of the Regulations requires the primary applicant to satisfy, amongst other criteria, PIC 4001 and 4002. Mrs Bah is therefore required to satisfy the criterion in reg 2.03AA(2) of the Regulations.

4. In summary, reg 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. Further, reg 2.03AA(2)(b) states 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). However, The Tribunal cannot waive the requirement for an applicant to provide a completed Form 80.

5. On 30 August 2023, the delegate requested Mrs Bah via her representative that she provide a number of documents including a police certificate from Sierra Leone authorities for herself and each of the 3 secondary visa applicants who were then included in her Partner application.  Neither Mrs Bah nor any of the secondary applicants were requested to provide a completed Form 80.  Although, subsequently, Mrs Bah withdrew 2 of the secondary applicants from her application - her eldest daughter Hawa Salamatu Bah born 27 August 2020 and her son Ibrahim Bah born 8 August 1997 - the delegate’s decision expressly states that the Department “has received no response” to its request for police certificates from Sierra Leone authorities for herself and her younger daughter Miss Haja Yayeh Sorie Bah.  The delegate does acknowledge some police clearances from Sierra Leone authorities had been lodged but the most recent had been issued on 24 September 2021, that is, nearly 2 years before the delegate’s request for updated police clearances.

6. Since no response had been received to the Department’s request for updated police clearances, the delegate refused to grant Mrs Bah the visa on 13 October 2023 on the basis that she did not meet reg 2.03AA(2)(a). As Mrs Bah did not meet criteria for grant of the visa, the delegate also refused the visa of her 16-year-old daughter, Miss Haja Yayeh Sorie Bah.

7. Following refusal of his wife’s Subclass 309 Partner (Provisional) visa, Mr Bah sought review in the Tribunal of that decision.  A copy of the delegate's decision was provided to the Tribunal. 

8. Accompanying the review application, the representative provided evidence that Mrs Bah had, in fact, lodged updated Sierra Leone police clearance certificates in respect of both herself and her daughter with the Department on 27 September 2023.  The Tribunal has reviewed the Department’s file and confirmed that the requested updated Clearance Certificates issued by Sierra Leone Police were lodged with the Department on 27 September 2023 at 13:02 (CLD2023/81178291) in respect of Mrs Bah and her daughter Miss Haja Yayeh Sorie Bah.  It is not clear to the Tribunal why the delegate was unaware of lodgement of requested documentation.  Sadly, through no fault of the applicants, it has delayed consideration of the matter by the Department.

9. After constitution of the matter to the Member, the Tribunal has proceeded to make a decision on the papers on the basis of the material before it consistent with s 360(2)(a) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the primary visa applicant have provided a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history. 

    Has the primary visa applicant provided a statement from an appropriate authority?

11. As noted above, accompanying the application for review lodged with the Tribunal on 22 December 2023, the representative the following documentation:

    1)a signed Clearance Certificate issued by Sierra Leone Police in respect of the primary visa applicant Salamatu Bah dated 14 August 2023; and,

    2)a signed Clearance Certificate issued by Sierra Leone Police in respect of Haja Yayeh Sorie Bah dated 15 August 2023.

    Both of the Clearance Certificates submitted to the Tribunal confirm that each of Mrs Bah and Haja Yayeh Sorie Bah have no criminal record in Sierra Leone. 

12. Based on evidence provided, the Tribunal finds that Mrs Bah has provided statements from the appropriate authority as requested and, accordingly, she meets reg 2.03AA(2)(a) of the Regulations.

    Conclusion

13. There is no evidence that the delegate made a request for Mrs Bah and her daughter Haja Yayeh Sorie Bah to provide a completed approved Form 80. Therefore, the requirements in reg 2.03AA(2)(b) of the Regulations do not apply in this case.

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

    DECISION

15. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·Regulation 2.03AA(2).

    Katie Malyon

    
    Member