Duong (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, brought by the applicant, Duong. The delegate of the Minister refused to grant the visa on 28 October 2022, finding that the applicant did not meet the requirements of regulation 2.03AA(2)(a) of the Migration Regulations 1994. The Administrative Appeals Tribunal, constituted by Member Melissa McAdam, reviewed this decision.

The primary legal issue before the Tribunal was whether the applicant had provided a statement from an appropriate authority that evidenced whether or not she had a criminal history, as required by regulation 2.03AA(2)(a). The Tribunal also considered whether regulation 2.03AA(2)(b) applied, which relates to the provision of an approved Form 80.

The Tribunal reasoned that the applicant had satisfied regulation 2.03AA(2)(a) by submitting a Certificate of Criminal Record from the Vietnamese Ministry of Justice, dated 20 March 2023, which stated she had no criminal record in Vietnam. The Tribunal noted that the applicant had previously provided an Australian Federal Police ‘Police Clearance Certificate’. Furthermore, the Tribunal found no evidence that the delegate had requested the applicant to provide a completed Form 80, meaning regulation 2.03AA(2)(b) was not applicable. Consequently, the Tribunal concluded that the applicant met regulation 2.03AA(2).

The Tribunal remitted the application for reconsideration with a direction that the applicant meets the criteria under regulation 2.03AA(2) for a Subclass 600 visa.