Bootpreecha (Migration)

[2022] AATA 2013

Bootpreecha (Migration) [2022] AATA 2013 (8 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thanakorn Bootpreecha

REPRESENTATIVE:  Mr Navneet Singh (MARN: 1573935)

CASE NUMBER:  2204814

HOME AFFAIRS REFERENCE(S):          BCC2020/1920129

MEMBER:Rosa Gagliardi

DATE:8 June 2022

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the application with the direction that the applicant meets PIC 4001(1) for the purposes of subclause 600.213(1) on the condition that the Thai police report is in the form and from the authority required under the regulations.

Statement made on 08 June 2022 at 12:36pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – character test – evidence of criminal history – Australian Federal Police National Police Certificate and Special Branch Royal Thai Police certification provided upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.213; Schedule 4, Public Interest Criteria 4001; 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 on 16 March 2022 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 17 July 2020. The delegate refused to grant the visa on the basis that the applicant did not meet some of the aspects of the character test.

3. The Tribunal now has before it information that permits it to go to decision with holding a hearing.

4. The applicant was represented in relation to the review.

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

6. In this case, I am not satisfied that clause 600.213 in Schedule 2 of the Migration Regulations which provides that:

   600.213
   (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013,
   4014, 4020 and 4021.
   (2) If the applicant has not turned 18, the applicant also satisfies public interest criteria 4012,4017 and 4018.

7. PIC 4001 requires section 65 delegates to assess a person against the terms of the ‘character test’. Under policy, a component of assessing a person against PIC 4001 for temporary or permanent migration is the provision of a police certificate for each country in which that person has lived for 12 months or more, over the last 10 years, since turning 16 years of age. A police certificate is a statement provided by the appropriate authority that provides evidence about whether or not the person has a criminal history. This statement is the key source of information as to a person’s character.

8. As the applicant is required to satisfy PIC 4001 for the grant of the visa, regulation 2.03AAapplies. This regulation states:

   Criteria applicable to character tests and security assessments
   (1) In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is
   required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in
   subregulation (2) is prescribed.
   (2) If the Minister has requested the following documents or information, the person
   has provided the documents or information:
   (a) a statement (however described) provided by an appropriate authority in a country
   where the person resides, or has resided, that provides evidence about whether or not the
   person has a criminal history;
   (b) a completed approved form 80.
   Note: For paragraph (a), an example of an appropriate authority is a police force.
   (3) The Minister may waive the requirement in paragraph (2)(a) if the Minister is
   satisfied that it is not reasonable for the applicant to provide the statement.

9. The information available to the Department indicates the applicant lived in Australia and Thailand for a cumulative period of 12 months or more, over the last 10 years, since turning 16 years of age.

10. A request was sent on 14 September 2020 for a police certificate from each country the applicant had resided in for 12 months or more in the past 10 years. The applicant was advised to provide evidence of applying for the relevant police clearances within a prescribed time frame.  As at the time of writing its decision the applicant had not responded to the Department’s request.

11. At the time of review the applicant has submitted a copy of an Australian Federal Police National Police Certificate certifying the applicant did not have a criminal record in any jurisdiction in Australia as at 4 May 2022.  In addition, the applicant submitted certification from the Special Branch Royal Thai Police, indicating the applicant did not have criminal or other record.

12. The Tribunal is not aware of the applicant having lived in any third country for any period of time.

    DECISION

13. The Tribunal remits the application with the direction that the applicant meet PIC 4001(1) for the purposes of subclause 600.213(1) on the condition that the Thai police report is in the form and from the authority required under the regulations.

    Rosa Gagliardi
    Member