Chen (Migration)

[2023] AATA 3275

Chen (Migration) [2023] AATA 3275 (28 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Wei Seine Chen

CASE NUMBER:  2313128

HOME AFFAIRS REFERENCE(S):          BCC2019/2479193

MEMBER:Justine Clarke

DATE:28 September 2023

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 28 September 2023 at 12:30pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal history – Malaysian police clearance and Australian Federal Police National Police Clearance provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.223; Schedule 4, Public Interest Criterion 4001; r 2.03AA

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 27 August 2023 by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On 10 May 2019, 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 (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, cl 820.223 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 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. 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).

5. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

6. The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate refused to grant the visa on the basis that the applicant did not meet reg 2.03AA because reg 2.03AA(2)(a) was not met. The decision stated that the applicant had not provided a police certificate or other statement from an appropriate authority in Malaysia, a country which the applicant had claimed to live for a cumulative period of 12 months or more, over the last 10 years, since turning 16 years of age. In addition, the delegate found that reg 2.03AA(3) did not apply because the applicant had not provided any claims or evidence to satisfy the delegate that it was not reasonable for the applicant to provide the requested evidence. The primary decision is silent as to whether the Department had requested the applicant to provide a completed approved Form 80 and thus whether reg 2.03AA(2)(b) had or had not been satisfied.

7. The Tribunal notes that the delegate also stated that while the applicant had provided an Australian Federal Police National Police Clearance from Australia, a country which the applicant had claimed to live for a cumulative period of 12 months or more, over the last 10 years, since turning 16 years of age, the certificate was dated 22 April 2022 and that ‘in order to meet PIC4001, a current clearance would be required as the clearance provided is expired under policy’.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether, at the time of this decision, 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?

10. The primary decision states that, as at 27 August 2023, which is when the delegate made the refusal decision, the applicant had not provided a Malaysian penal clearance/police clearance pursuant to the Department’s requests, commencing with its written request of 6 December 2020.

11. On 28 August 2023, the applicant applied to the Tribunal for the review of the primary decision.

12. On 5 September 2023, the applicant submitted a copy of the applicant’s police clearance issued by the Government of Malaysia, dated 11 October 2022.

13. On 21 September 2023, the applicant submitted a copy of the applicant’s Australian Federal Police National Police Clearance dated 8 September 2023.

14. Following constitution to the presiding Member, the Tribunal reviewed the evidence before it. The Tribunal finds that the applicant has provided statements from the appropriate authorities and therefore meets reg 2.03AA(2)(a).

    Conclusion

15. Based on the above findings, the applicant meets reg 2.03AA(2)(a).

16. The Tribunal notes that, if the Department has requested the applicant to provide a completed approved Form 80, she will need to provide the completed approved Form 80 to the Department before a decision maker can be satisfied that she meets reg 2.03AA(2) in its entirety.

    DECISION

17. 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