De Guzman (Migration)

[2022] AATA 1856

De Guzman  (Migration) [2022] AATA 1856 (31 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Medardo De Guzman

CASE NUMBER:  2203318

HOME AFFAIRS REFERENCE:               BCC2021/129729

MEMBER:Rosa Gagliardi

DATE:31 May 2022

PLACE OF DECISION:  Australian Capital Territory

DECISION:       

The Tribunal remits the application with the

  

direction that the applicant meets PIC 4001 for

  

the purposes of subclause 600.213(1).

Statement made on 31 May 2022 at 2:44pm

CATCHWORDS
MIGRATION – Visitor (Class TU) visa – Subclass 600 (Visitor) – character requirements – criminal history statements – specified police statements from Australia and home country provided to tribunal – no disclosable court outcomes – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2, cl 600.213(1), 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 on 24 February 2022 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 18 January 2021. The delegate refused to grant the visa on the basis that the applicant had not met aspects of the character requirements, because he not provided appropriate documentation to demonstrate he had obtained an Australian Federal Police (AFP) check or the equivalent from the Philippines.

3. The Tribunal now, at the time of review, has additional information upon which it can make a decision without holding a hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant must satisfy subclause 600.213(1), which reads:

   (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4013,
   4014, 4020 and 4021.

6. Specifically, the applicant did not satisfy public interest criterion (PIC) 4001 which requires a delegate to assess a person against the terms of the ‘character test’. Under policy, a component of assessing a person against PIC 4001 for temporary or permanent migration is the provision of a police clearance certificate for each country in which that person has lived for 12 months or more, over the last 10 years, since turning 16 years of age. A police clearance certificate is a statement provided by the appropriate authority that provides evidence about whether or not the person has a criminal history. This statement is a key source of information as to a person’s character.

7. As the applicant is required to satisfy PIC 4001 for the grant of the visa, regulation 2.03AA applies.

   This regulation states:
   Criteria applicable to character tests and security assessments
   (1) In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is
   required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in
   subregulation (2) is prescribed.
   (2) If the Minister has requested the following documents or information, the person has
   provided the documents or information:
   (a) a statement (however described) provided by an appropriate authority in a country where
   the person resides, or has resided, that provides evidence about whether or not the person
   has a criminal history;
   (b) a completed approved form 80.
   Note: For paragraph (a), an example of an appropriate authority is a police force.
   (3) The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that
   it is not reasonable for the applicant to provide the statement.

8. The applicant was requested by the Department on 24 December 2021 and 24 January 2022 to provide a statement provided by an appropriate authority in Australia/other country that provides evidence about whether or not he has a criminal history. Specifically, the Department required a National Bureau of Investigation Certificate from the Philippines as well as an AFP clearance.  At the time the Department wrote its decision the applicant was yet to respond.  Nor had he submitted any information to indicate it was unreasonable to provide a criminal history check.

9. At the time of review the applicant has now submitted an AFP National Police Certificate certifying that as at 23 March 2022, there were no disclosable court outcomes recorded against his name.  He has also now submitted a National Bureau of Investigation Certificate from the Philippines, valid until 24 January 2023, indicating there were no adverse events against the applicant.

10. The Tribunal is not aware that the applicant has lived in any third countries.

    DECISION

11. The Tribunal remits the application with the direction that the applicant meets PIC 4001 for the purposes of subclause 600.213(1).

    Rosa Gagliardi
    Member