Bautista (Migration)

[2021] AATA 606

Bautista (Migration) [2021] AATA 606 (2 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rodel Bautista

CASE NUMBER:  1922811

HOME AFFAIRS REFERENCE(S):          BCC2016/3229921

MEMBER:Brendan Darcy

DATE:2 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·Regulation 2.03AA(2)

Statement made on 02 March 2021 at 11:45am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal history statements – statements from home country and Australia provided to tribunal – driving disqualifications and fines disclosed – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 25 July 2019. The criteria for a Partner (Temporary) (Class UK) 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, 820.223 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 26 July 2019 on the basis that the applicant did not meet reg 2.03AA because no statement provided by an appropriate authority in a country where the applicant resides, or has resided, that provides evidence about whether or not the person has a criminal history.

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. After assessing your visa application, a delegate on behalf of the Minister sent the applicant’s representative an email on 9 August 2018 requesting further information within 28 days, which included a request for police certificates from Australia, Japan and The Philippines.

9. On 24 October 2018, a departmental officer contacted the applicant’s represented regarding the outstanding documents. The migration agent stated that they had difficulties in contacting the applicant. On 29 October 2018, an officer telephoned the applicant regarding the outstanding documents. On 29 October 2018, the Department received an email withdrawing the appointment of the migration agent.

10. On 18 April 2019, a final written requested was emailed to the applicant regarding the outstanding documents. A request for an extension was received on 16 May 2019. The applicant was granted an additional seven (7) days to provide the requested documents,

11. On 24 May 2019, the Tribunal received a criminal history certificate from Japan dated 4 October 2010 but no equivalent documents or statements from the Philippines or Australia.

12. Under these circumstances (and not unreasonably), a delegate proceeded to make a decision to refuse the applicant a Subclass 820 partner visa on 26 July 2019.  

13. A valid application to have the delegate’s refusal decision reviewed by the Tribunal was lodged on 16 August 2019.

14. On 19 February 2020, the Tribunal requested that you provide the following information:

    · A current Australian Police Certificate; and

    · A current Philippines Police Certificate.

15. On 10 December 2020, the Tribunal received a ‘NBI Clearance’ dated 3 September 2020 pertaining to the applicant. The document was issued by The Philippines’ Department of Justice’s National Bureau of Investigation, stating it was valid until 3 September 2021.

16. The applicant provided a National Police Certificate dated 13 June 2019 issued by the Australian Federal Police that was twelve months old on the same day. The Tribunal request a more recent document on 15 December 2020.

17. On 17 February 2020, the Tribunal received a National Police Certificate (Complete disclosure) dated 5 February 2021 pertaining to the applicant. The document was issued by the Australian Federal Police and it lists a number of offenses for which the applicant’s drivers’ licence was disqualified for periods of time and fined in Australia.

18. These documents or statements are suitable for the purposes of subregulation 2.03AA(2)(a).

19. Based on this information, no scheduled hearing was required to reach a favourable decision in this matter.

20. The applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

    Conclusion

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

    DECISION

22. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·Regulation 2.03AA(2).

    Brendan Darcy
    Member