Chan (Migration)

[2019] AATA 2236

Chan (Migration) [2019] AATA 2236 (3 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yiu Keung Chan

CASE NUMBER:  1905543

DIBP REFERENCE(S):  BCC2016/418868

MEMBER:Justine Clarke

DATE:3 May 2019

PLACE OF DECISION:  Melbourne

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

·Regulation 2.03AA(2)(a)

Statement made on 03 May 2019 at 12:42pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – police clearance documents provided – several extensions of time granted – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2, cl 820.223, Public Interest Criterion, 4001, 4002

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 Immigration to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. On 28 January 2016, the applicant applied for the visa. The criteria for a Partner (Temporary) (Class UK) visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of 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(1) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. Therefore, the applicant is 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. On 22 February 2019, the delegate refused to grant the visa on the basis that the applicant did not meet r.2.03AA because he did not meet r.2.03AA(2)(a) because he had not provided a police certificate or other statement issued by an appropriate authority in Hong Kong and Australia, being countries in which the applicant has resided, that provides evidence about whether or not the applicant has a criminal history.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant has provided a statement by the two relevant authorities that evidence whether or not the person has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

8. The primary decision states that:

   ·On 21 March 2017, the Department emailed the applicant, requesting further information, including a request for police certificates from both Hong Kong and Australia.

   ·On 27 April 2017, the applicant requested an extension of time in which to provide the documents.

   ·On 4 May 2017, the applicant provided a copy of a certificate issued by the Australian Federal Police on 26 April 2017 that was valid for 12 months from that date.

   ·On 12 February 2018, the Department emailed the applicant again, requesting him to provide a Hong Kong police clearance.

   ·On 16 February 2018, the applicant requested an extension of time in which to provide the document.

   ·On 20 February 2018, the Department emailed the applicant to inform him that an extension of time had been granted and requesting him to provide a Hong Kong police clearance as soon as it had been made available to him.

   ·On 21 November 2018, the Department emailed the applicant, requesting further information, including police certificates from both Hong Kong and Australia as the former certificate issued by the Australian Federal Police was no longer valid.

   ·On 14 December 2018, the sponsor emailed the Department requesting an extension of time in which to provide the documents.

   ·On 17 December 2018, the Department responded and refused to grant the extension sought as it was the third time an extension of time had been requested. The Department advised that a decision would be made on the information available.

9. As at 22 February 2019, which was the date of the primary decision, the applicant had not provided valid police certificates from both Hong Kong and Australia as had been requested. The delegate stated:

   As you have had almost two years and have been back to Hong Kong twice since the Department’s request, I find that you have been given more than ample time to provide the required documents.

   Accordingly, the delegate refused the application for a Partner (Temporary) (Class UK) visa.

10. On 8 March 2019, the applicant applied to the Tribunal for review of the primary decision. In this review, the applicant has been represented by a registered migration agent.

11. On 20 March 2019, the Tribunal wrote to the applicant’s representative requesting the applicant to provide relevant police clearances by 3 April 2019.

12. On 25 March 2019, the representative responded with evidence that the applicant had applied for the relevant certificates and requested an extension of time in which to submit the documents given the expected timeframe of receipt of the documents from the respective authorities.

13. On 27 March 2019, the Tribunal wrote to the applicant and requested that the documents be submitted as soon as they were available.

14. On 29 March 2019, the representative submitted a copy of the applicant’s National Police Certificate issued by the Australian Federal Police on 25 March 2019.

15. On 11 April 2019, the representative submitted a copy of a statement provided by the Hong Kong Police Force on 3 April 2019 that provides evidence about whether or not the person has a criminal history.  

16. The applicant has provided statements from the appropriate authorities and therefore meets r.2.03AA(2)(a).

    Conclusion

17. 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.

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

    DECISION

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

    ·Regulation 2.03AA(2)(a)

    Justine Clarke
    Member