Chahal (Migration)

[2022] AATA 4630

Chahal (Migration) [2022] AATA 4630 (26 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurpal Singh CHAHAL

REPRESENTATIVE:  Mr Neeraj Sharma (MARN: 0746230)

CASE NUMBER:  2200284

HOME AFFAIRS REFERENCE(S):          BCC2020/2365195

MEMBER:Mireya Hyland

DATE:26 October 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

·Regulation 2.03AA

Statement made on 26 October 2022 at 11:40am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – character test – statement from an appropriate authority – National Police Certificate from the Australian Federal Police – police clearance certificate from the Consulate General of India – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A

Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl.600.213; Schedule 4, PIC 4001

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, Gurpal Singh Chahal, a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Chahal applied for the visa on 25 September 2020. The criteria for a Visitor (Class FA) Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations. Regulation 2.03AA applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002 in Schedule 4 to the Regulations: r.2.03AA(1). In this case, cl.600.213(1) of the Regulations requires Mr Chahal to meet PIC4001 and PIC4002. He is, therefore, required to satisfy the criterion in r.2.03AA of the Regulations.

3. Regulation 2.03AA(2)(a) requires that, if requested, the applicant has provided 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. Regulation 2.03AA(2)(b) requires the applicant to provide a completed approved Form 80 if requested. 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.

4. The delegate refused to grant the visa on the basis that Mr Chahal did not meet r.2.03AA because the Department for Home Affairs requested that he provide a statement from a relevant authority in India and Australia that provides evidence about whether he has a criminal history and Mr Chahal did not provide those statements.

5. The issue in this case is whether Mr Chahal has provided a statement from a relevant authority in India and Australia with evidence about any criminal history. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   consideration of claims and evidence

6. On 14 January 2022, Mr Chahal provided the Tribunal with a National Police Certificate from the Australian Federal Police. On 20 October 2022, he provided it with a police clearance certificate from the Consulate General of India in Melbourne, Victoria.

7. Mr Chahal has provided a statement from an appropriate Indian and Australian authority with evidence about whether or not he has a criminal history. There is no evidence that he has resided in any other country. Therefore, Mr Chahal meets r.2.03AA(2)(a). There is no evidence that the Department made a request for Mr Chahal to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply. On the basis of these findings, Mr Chahal meets r.2.03AA.

   decision

8. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

   ·Regulation 2.03AA.

   Mireya Hyland

   
   

   Member