Chand (Migration)

[2021] AATA 4914

Chand (Migration) [2021] AATA 4914 (20 December 2021)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashil Ashmit Chand

CASE NUMBER:  2115275

HOME AFFAIRS REFERENCE(S):          CLF2020/517

MEMBER:Brendan Darcy

DATE:20 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Extended Eligibility (Temporary) (Class TK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 445 visa:

·Regulation 2.03AA(2)

Statement made on 20 December 2021 at 10:03am

CATCHWORDS
MIGRATION – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent Child) – police clearance statements – certificates from home country and Australia provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 2, cl 445.225, Schedule 4, condition 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 a Extended Eligibility (Temporary) (Class TK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 December 2019. The criteria for a Extended Eligibility (Temporary) (Class TK) visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (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: reg 2.03AA(1). In this case, 445.225 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in reg 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 reg 2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 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 8 October 2021 on the basis that the applicant did not meet reg 2.03AA because the applicant had not provided a police clearance certificate or statement provided by an appropriate authority in Australia and the applicant’s country of reference.

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 an appropriate authority that provides evidence about whether or not the person has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

8. After assessing your visa application, a delegate on behalf of the Minister sent the applicant via email to the applicant’s representative an email on 27 July 2021, requesting further information within 28 days, which included a request for police certificates from Australia, and the Republic of Fiji, the applicant’s country of reference.

9. A period of 28 days from the date of the letter was provided for response. No response was received and the requested police clearances were not submitted, nor any evidence that they were in progress.

10. On 25 August 2021, a departmental officer contacted the applicant’s represented regarding the outstanding documents. After a period of another 28 days no further evidence had been submitted or any evidence the certificates or statements were in progress.

11. The delegate proceeded to refuse the visa on 8 October 2021. The applicant validly applied to have the refusal decision reviewed by the Tribunal on 28 October 2021.

12. On 29 October 2021, the Tribunal revied a copy of the applicant’s police certificate issued by the Fiji Police Force issued on 30 September 2021.

13. On 8 November 2021, he Tribunal further received a copy of the applicant’s National Police Certificate issued by the Australian Federal Police dated 31 August 2021.

14. The Tribunal is satisfied that the applicant has provided statements from the appropriate authorities, as requested, and therefore meets reg 2.03AA(2)(a).

15. Based on this information, no scheduled hearing was required to reach a favourable decision in this matter.

16. On the basis of the above findings, the applicant meets reg 2.03AA(2).

    DECISION

17. The Tribunal remits the application for an Extended Eligibility (Temporary) (Class TK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 445 visa:

    ·Regulation 2.03AA(2).

    Brendan Darcy
    Member