CALVAR (Migration)

[2018] AATA 5355

CALVAR (Migration) [2018] AATA 5355 (26 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jennifer Lubang CALVAR

CASE NUMBER:  1829526

DIBP REFERENCE(S):  BCC2017/248955

MEMBER:Hugh Sanderson

DATE:26 October 2018

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:

·Regulation 2.03AA(2).

Statement made on 26 October 2018 at 2:04pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – statement about criminal history from an appropriate authority – certificate from the Philippines Department of Justice - National Bureau of Investigation provided to the Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 of a delegate of the Minister for Immigration on 6 October 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 January 2017 on the basis of 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 (the Regulations).

3. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: r.2.03AA(1). In this case, cl.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 r.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 r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.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 the basis that the visa applicant did not satisfy cl.820.223 because the applicant had failed to provide to the Department, despite numerous requests, a Philippine Police Clearance Certificate. As such, the delegate found the applicant had not complied with r.2.03AA(2). As a result, the applicant did not satisfy PIC 4001 as required by cl.820.223.

6. The applicant has now provided further information to the Tribunal. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present 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.

2. The applicant was requested to provide a Police Certificates from Hong Kong, the Philippines and Australia. The applicant provided to the Department a certificate from the Australian Federal Police dated 17 March 2018 certifying were no disclosable Court outcomes recorded against her name. The applicant provided a Certificate of No Criminal Conviction from the Hong Kong Police Headquarters dated 3 July 2018.

3. The applicant has now provided to the Tribunal a certificate from the Philippines Department of Justice – National Bureau of Investigation dated 17 September 2018 noting that she has no record on file.

4. The applicant has now provided the three certificates from the appropriate authorities as requested by the Department in accordance with the requirements of r.2.03AA(2)(a) and satisfies this criteria.

5. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

6. On the basis of the above findings, the applicant meets r.2.03AA(2). 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

1. 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:

   ·Regulation 2.03AA(2).

Hugh Sanderson
Member