Bui (Migration)

[2022] AATA 4839

Bui (Migration) [2022] AATA 4839 (17 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Van Bui

CASE NUMBER:  2206935

HOME AFFAIRS REFERENCE(S):          BCC2017/639132

MEMBER:Michael Cooke

DATE:17 November 2022

PLACE OF DECISION:  Sydney

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

·Reg. 2.033AA(2)(a)

Statement made on 17 November 2022 at 1:23pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – National Police Clearance from AFP provided – Tribunal received a Certificate of Criminal Records from the Socialist Republic of Vietnam – Public Interest Criterion (PIC) 4001 met – decision under review remitted 

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 2.03AA, Schedule 2, cl 820.223

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 15 February 2017 based on her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (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. The delegate refused the application on the basis that crucial evidence relevant to Public Interest Criterion 4001 - as required by regulation 2.03AA under the Migration Regulations 1994 (the Regulations) - was not provided by the applicant. This was a statement from an appropriate authority about any criminal history and which was required to satisfy a criterion for the grant of the visa.

4. The matter is before the Tribunal because of a Court order quashing the Tribunal decision and remitting the matter to the Tribunal to be determined according to law.

5. On 3 June 2021 the Tribunal received a Certificate of Criminal Records from the Socialist Republic of Vietnam in the name of the applicant and dated17 May 2021.

6. On 10 July 2021 the Tribunal received a National Police Certificate from the Australian Federal Police in the name of the applicant dated 30 June 2021.

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

   Consideration of claims and evidence

8. The issue in the present case is whether (on review) the applicant does meet cl.820.223 of the Regulations.

9. At the time of decision an applicant must satisfy clause 820.223, which requires that they meet several public interest criteria, including Public Interest Criterion (PIC) 4001.

10. 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 as to whether or not the person has a criminal history. This statement is the key source of information as to a person’s character.

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

    Reg 2.03AA 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.

12. The applicant, had not earlier complied with the Departmental request but has, subsequently, submitted the required paperwork.

13. The Tribunal finds he now meets the prescribed criterion in subclause 2.03AA(2)(a).

14. The Tribunal has decided to act under s 349(2)(c) of the Migration Act 1958 (Cth) (“the Act”) which provides that, in a matter such as this one (see; reg 4.15(1)(a)), that the Tribunal may remit a matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations.

15. Thus, the Tribunal now finds (following receipt of the required information) that he satisfies cl.820.223AA(2)(a).

16. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    decision

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

    ·Reg. 2.033AA(2)(a)

    Michael Cooke
    Senior Member