Faaae Erika (Migration)

[2022] AATA 597

Faaae Erika (Migration) [2022] AATA 597 (7 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Erika Faaae Erika

CASE NUMBER:  2117532

HOME AFFAIRS REFERENCE(S):          BCC2020/2634490

MEMBER:Anne Grant

DATE:7 March 2022

PLACE OF DECISION:  Melbourne

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 (Visitor) visa:

·Public Interest Criterion 4001 for the purposes of cl 600.213(1) of Schedule 2 to the Regulations

Statement made on 07 March 2022 at 2:26pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – character test – evidence of criminal history – Australian Federal Police National Police Certificate provided upon review – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.213; Schedule 4, Public Interest Criterion 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 16 November 2021 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 12 November 2020. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include 600.213(1), which requires the visa applicant to satisfy public interest criteria 4001, 4002, 4003, 4005,4013, 4014, 4020 and 4021.

1. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.213(1) because he did not satisfy public interest criteria (PIC) 4001.

2. The Tribunal did not consider a hearing to be necessary as it was able to remit the matter on the material before it.

3. 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 PIC 4001 is met, which requires the Minister (or the Tribunal standing in the Minister’s shoes) to be satisfied that the visa applicant passes the character test; or the Minister to be satisfied that there is nothing to indicate that he would fail to satisfy the Minister that he passes the character test; or the Minister has decided not to refuse to grant a visa to him, despite reasonably suspecting that he does not pass the character test; or the Minister has decided not to refuse to grant a visa to him despite not being satisfied that he passes the character test.

8.    According to the Departmental file, the applicant had provided to the Department a Police Clearance Certificate from the Samoa Police Headquarters dated 22 December 2020.  The certificate stated that the applicant had no previous convictions to the date of issuance of the report. 

9.    According to the Departmental file, on 13 July 2021 and 9 September 2021, the applicant was requested by the Department to provide a national police certificate from the Australian Federal Police that provided evidence about whether or not he has a criminal history. The delegate had not received that statement by the time they made the decision here under review. The delegate found that the applicant therefore did not satisfy PIC 4001.

10.   On 24 January 2022,  the applicant sent to the Tribunal a National Police Certificate from  the Criminal Records section of the Australian Federal Police dated 13 January 2022. This certificate states that he did not have any disclosable court outcomes recorded against him, as at the date of the certificate.

11.   On the evidence before it, the Tribunal finds that the applicant satisfies the character test and the requirements in PIC 4001 are met for the purposes of cl 600.213(1).

12.   Given the above finding, the appropriate course is for the Tribunal to remit the visa application to the Minister for reconsideration of the remaining criteria for the Subclass 600 visa.

DECISION

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

   • Public interest criterion 4001 for the purposes of cl 600.213(1) of Schedule 2

   to the Regulations.

   Anne Grant
   Member