Cabil (Migration)

[2018] AATA 1552

Cabil (Migration) [2018] AATA 1552 (17 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Tessie Aposacas Cabil
Master Renz Cabil Valerio

CASE NUMBER:  1620528

DIBP REFERENCE(S):  BCC2015/286336

MEMBER:Kira Raif

DATE:17 April 2018

PLACE OF DECISION:  Sydney

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

·Regulation 2.03AA. 

Statement made on 17 April 2018 at 12:23pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary) – Applicant did not provide police clearance certificate – Applicant subsequently provided police clearance certificate – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2, cl 820.223, Schedule 4, PIC 4001

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 30 November 2016 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) is a national of the Philippines, born in May 1988. She applied for the visa on 23 January 2015 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.223 because the applicant did not produce relevant police clearance certificates and the delegate was not satisfied the applicant met the character requirements. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the materials before it.

   Relevant law

4. Clause 820.223 requires that the applicant meets Public Interest Criteria including PIC 4001. Where a person is required to satisfy PIC 4001 for the grant of a visa, there are additional criteria prescribed under r.2.03AA that must be met for the grant of visa. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s character and criminal history.

5. Regulation 2.03AA(1) states that, in addition to the criteria prescribed by Regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or PIC 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

6. Regulation 2.03AA(2) provides that 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.

   Does the applicant meet regulation 2.03AA?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the delegate wrote to the applicant requesting her to provide a police clearance certificate from Australia. It appears the applicant failed to provide her police clearance certificate and as a result, her application was refused. In her written submission to the Tribunal the applicant stated that her previous migration agent did not communicate the request to her and she was unaware of the requirement.

8. The applicant has now provided to the Tribunal her current AFP penal certificate. The certificate does not indicate any prior convictions or criminal data.

9. The Tribunal is satisfied that the Minister requested a statement provided by an appropriate authority in a country where a person resides, or has resided, that provides evidence about whether or not the person has a criminal history. The Tribunal is satisfied that the applicant has now provided to the Tribunal a copy of the relevant penal certificate. A completed form 80 appears on the Departmental file. The Tribunal is satisfied that the applicant meets r.2.03AA(2) and therefore meets r.2.03AA.

10. Although the delegate found that the applicant did not satisfy cl.820.223, this finding appears to have been made on the basis that as the applicant failed to provide the police certificate and did not meet r.2.03AA, which was necessary for an assessment of PIC 4001. As the applicant has provided the relevant police certificate, the delegate is now able to assess whether the applicant meets PIC 4001 for the purposes of cl.820.223.

11. The Tribunal considers the appropriate course of action is to remit the application to the Minister to undertake consideration of whether the applicant meets PIC 4001 for the purposes of cl.820.223 and the remaining criteria for the grant of a Partner visa.

    DECISION

12. 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 (Temporary)) visa:

    ·Regulation 2.03AA. 

    Kira Raif
    Senior Member