Curcuruto (Migration)

[2023] AATA 4232

Curcuruto (Migration) [2023] AATA 4232 (4 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ma Cecilia De Juan Curcuruto

VISA APPLICANT:  Miss Karla Keeshia Solomon Flores

REPRESENTATIVE:  Mrs Marimi Tanag (MARN: 1386887)

CASE NUMBER:  2310291

HOME AFFAIRS REFERENCE(S):          2017122423

MEMBER:David Crawshay

DATE:4 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criterion for a Subclass 101 visa:

·r.2.03AA(2).

Statement made on 04 August 2023 at 10:01am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – character test – statement from an appropriate authority – Philippines police clearance – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 4, 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 Home Affairs to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 24 November 2017. The criteria for a Child (Migrant) (Class AH) 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: r.2.03AA(1). In this case, cl.820.223 of Schedule 2 of the Regulations requires the visa applicant to meet PIC 4001 and 4002. The visa applicant is therefore required to satisfy the criterion in r.2.03AA(2). Regulation 2.03AA(2)(a) requires that, if requested, the visa 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 visa 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 visa applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the visa applicant to provide a completed Form 80.

4. The delegate refused to grant the visa on 3 May 2023 on the basis that the visa applicant did not meet r.2.03AA because she had not provided an updated Philippines police clearance (an older clearance was previously provided dated 1 August 2017).

5. On 12 July 2023, the visa applicant submitted a document dated 14 September 2022 from the Department of Justice National Bureau of Investigation of the Republic of the Philippines. The Tribunal is satisfied that this check is genuine and current. It therefore accepts that it is valid for the purposes of r.2.03AA(2)(a).

6. In light of the above, the visa applicant meets r.2.03AA(2)(a) and because she has not been requested to submit a Form 80, r.2.03AA(2)(b) does not apply. Regulation 2.03AA(2) is satisfied in its entirety.

   DECISION

7. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criterion for a Subclass 101 visa:

   ·r.2.03AA(2).

   David Crawshay
   Member