Dermthamram (Migration)

[2022] AATA 3324

Dermthamram (Migration) [2022] AATA 3324 (23 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hathaichanok Dermthamram

CASE NUMBER:  2118591

HOME AFFAIRS REFERENCE(S):          BCC2020/1270014

MEMBER:Meena Sripathy

DATE:23 August 2022

PLACE OF DECISION:  Sydney

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)

Statement made on 23 August 2022 at 10:42am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal history – Thai police clearance certificate 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 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. The applicant applied for the visa on 27 March 2020. 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, 820.223 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. 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 29 November 2021 on the basis that the applicant did not meet reg 2.03AA because the applicant was requested to provide but did not provide as at the date of the decision, a police clearance certificate from Thailand.

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. On 24 December 2020 the delegate made a request for the applicant to provide police certificates from Australia and Thailand. Further follow up requests were made on 27 January 2021 and 20 March 2021 to provide the Thai police certificate.  On 29 November 2021 attempts were made by an officer of the Department to contact the applicant and sponsor without success.  By the time of the delegate’s decision on 29 November 2021 a Thai police certificate had not been provided, and the application was refused on the basis that the applicant did not meet subregulation 2.03AA(2).

9. On 8 March 2022 the Tribunal invited the applicant to provide the police certificate previously requested by the Department. On 29 April 2022 the Tribunal received a copy of a police clearance certificate issued by Special Branch Royal Thai Police dated 29 April 2022. 

   Conclusion

10. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in reg 2.03AA(2)(b) does not apply.

11. Department file records provided to the Tribunal indicate an AFP Police Certificate relating to the applicant dated 21 March 2021 was provided to the Department on 7 April 2021.

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

    decision

13. 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).

    Meena Sripathy
    Member