Engstrom (Migration)

[2022] AATA 1758

Engstrom (Migration) [2022] AATA 1758 (11 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr John Engstrom

CASE NUMBER:  2200670

HOME AFFAIRS REFERENCE(S):          BCC2021/1109094

MEMBER:Alan McMurran

DATE:11 April 2022

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 11 April 2022 at 3:47pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – criminal history – statement by an appropriate authority – certificate from Swedish Police – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 600.213; Schedule 4, PIC 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 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 19 May 2021. 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, PIC 4001 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001.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 13 January 2022 on the basis that the applicant did not meet reg 2.03AA because the applicant had not provided a statement provided by an appropriate authority in a country where the applicant resides.

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 18 January 2022 the applicant provided the following written statement to the Tribunal:

   To Whom it may concern,

   I provided evidence from an ‘appropriate authority’ the Swedish Police authority national operations department of international affairs (registration a268.238/2-21, on 27/05/2021 which stated I had no criminal convictions (see attached) as to satisfy the PIC 4001 for the ‘character test’.

   I received an email on 2/12/2021 of s56 request for more information and was given 28 days to prove so.

   I made genuine attempts to obtain further penal clearance as directed by immigration. As you will see the receipt attached on the 22/09/2021, this certificate never arrived in Australia.

   On the 03/11/2021 I applied for another police certificate to be sent to my home in Sweden and remained in good faith that it would arrive within time.

   The correspondence letter I received on the 02/12/2021 did not indicate intention to consider cancellation and I also fell ill with Corona virus after Christmas.

   On the 13/01/2021, I received notification of my Visa refusal. It took Swedish authorities until 07/01/2022 to complete my clearance that I requested in November, this two month wait was out of my control and during the busiest international time of the year.

   Given my ill health at the time AND absolute lack of criminal history I am appealing this decision and providing evidence of my attempts to obtain this information (22/09/2021 and 03/11/2021) and my attached police register from 07/01/2022.

   I very much desire to remain in Australia with my partner as she advances through challenging studies as a midwife for NSW health.

   I hope you can support my further interest in Australian society and culture by granting me
   this visa.

9. The Tribunal has received a copy of a certificate form Swedish Police dated 7 January 2022 which confirms there is no information about the applicant.

10. The Tribunal finds that the applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a). Conclusion

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

    DECISION

12. 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).

    Alan McMurran
    Member