Bobbali (Migration)

[2024] AATA 3176

Bobbali (Migration) [2024] AATA 3176 (23 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Savitha Bobbali

REPRESENTATIVE:  Mrs Yojana Pareek (MARN: 1575202)

CASE NUMBER:  2426255

HOME AFFAIRS REFERENCE(S):          BCC2021/509596

MEMBER:Anne Grant

DATE:23 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·Regulation 2.03AA(2)

Statement made on 23 August 2024 at 1:43pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – criminal history Form 80 – completed, signed form provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(2)(b), Schedule 2, cl 500.217, Schedule 4, criteria 4001, 4002

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 Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 8 April 2021. The criteria for a Student (Temporary) (Class TU) 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, 500.217 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. 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 25 July 2024 on the basis that the applicant did not meet reg 2.03AA because the applicant had not provided a completed approved Form 80 as requested. 

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 completed Form 80.

   Has the applicant provided a completed approved Form 80?

8. The department wrote to the applicant and specifically requested that she provide a completed Form 80 (along with other information) on 13 June 2024. On 4 July 2024, the applicant’s representative emailed the department to request an extension of time within which to provide the requested information.  On 10 July 2024, the applicant submitted various evidence in support of her application for the visa but did not provide a completed Form 80. 

9. On 25 July 2024, the delegate refused the visa because the applicant had still not complied with the request to provide the Form 80. 

10. On 12 August 2024, the applicant provided a signed, completed Form 80 to the Tribunal.  The form appears to have been signed on 1 July 2024.

11. The tribunal is therefore satisfied that the applicant has now provided a completed approved Form 80 and therefore meets regulation 2.03AA(2)(b).  

    Conclusion

12. There is no evidence that the delegate made a request for the applicant to provide a statement from an approved authority, therefore the requirement in reg 2.03AA(2)(a) does not apply.

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

    DECISION

14. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

    ·Regulation 2.03AA(2).

    Anne Grant
    Member