Chhun (Migration)

[2019] AATA 3725

Chhun (Migration) [2019] AATA 3725 (18 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sok Kim Chhun

VISA APPLICANT:  Mr Socheat Seng

CASE NUMBER:  1906877

DIBP REFERENCE(S):  BCC2017/4303857

MEMBER:David Barker

DATE:18 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 visa:

·r 2.03AA(2)(a) and

·PIC 4001 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

Statement made on 18 April 2019 at 6:57am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – evidence of criminal history – evidence provided upon review – decision under review remitted 

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2 cl 309.225, r 2.03AA, Public Interest Criterion (PIC) 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 (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 16 November 2017 on the basis of his relationship with his sponsor, Mrs Sok Kim Chhun, the review applicant.

3. The delegate refused to grant the visa on 8 February 2019 on the basis that evidence of criminal history was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

4. On 8 April 2019 the Tribunal received a scanned copy of a Criminal Record No. 3 Certificate from the Kingdom of Cambodia dated 20 April 2018, along with a translation of this document.  This document states that no criminal record has been found in Cambodia in relation to Seng Socheat, the applicant.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

6. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of r.2.03AA as required for the purposes of PIC 4001.

8. At the time the visa application was lodged, Class UF visas contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.309.225, which requires among other public interest criteria, 4001 to be met. If a person is required to satisfy PIC 4001, r. 2.03AA also applies.

9. Regulation 2.03AA provides that, if requested a visa applicant who is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa is also required to provide: a statement from an appropriate authority as to whether the applicant has a criminal history and/or a completed form 80 (Personal particulars for assessment including character assessment).

10. The Tribunal finds the applicant has now provided a statement from an appropriate authority in Cambodia which states he has no criminal history in that country.

11. Given this finding, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

12. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·r 2.03AA(2)(a) and

    ·PIC 4001 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

    David Barker
    Member