Duong (Migration)

[2023] AATA 1086

Duong (Migration) [2023] AATA 1086 (12 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Kim Tuyen Duong

REPRESENTATIVE:  Mr Hunter Te (MARN: 1804811)

CASE NUMBER:  2216858

HOME AFFAIRS REFERENCE(S):          BCC2020/1267395

MEMBER:Melissa McAdam

DATE:12 April 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

·Regulation 2.03AA(2)

Statement made on 12 April 2023 at 2:23pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – applicant submitted a copy of a Certificate of Criminal Record from Vietnam – applicant has no criminal record in Vietnam – applicant provided statements from appropriate authorities as requested – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 2.03AA, Schedule 2, cl 600.213

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 Visitor (Class FA) 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 Visitor (Class FA) 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, clause 600.213 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. On 26 August 2020 and 24 September 2020 the delegate requested the applicant provide a police certificate from the Australian authorities and from the Vietnamese authorities.  The applicant was not requested to provide a completed Form 80.

6. On 1 October 2020 the applicant submitted a police clearance certificate in her name from the Australian Federal Police. It states that there are no disclosable court outcomes against the applicant.

7. The applicant did not submit a criminal history statement from the Vietnamese authorities.

8. The delegate refused to grant the visa on 28 October 2022 on the basis that the applicant did not meet reg 2.03AA(2)(a).

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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?

10. The applicant previously submitted an Australian Federal Police ‘Police Clearance Certificate’ to the Department.

11. On 27 March 2023 the applicant submitted to the Tribunal a copy of a Certificate of Criminal Record in her name from Vietnam, issued by the Vietnamese Ministry of Justice and dated 20 March 2023.  It records that the applicant has no criminal record in Vietnam.

12. The applicant has therefore provided statements from appropriate authorities as requested and accordingly meets reg 2.03AA(2)(a).

    Conclusion

13. 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.

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

    DECISION

15. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

    ·Regulation 2.03AA(2).

    Melissa McAdam
    Member