Finau (Migration)

[2020] AATA 2022

Finau (Migration) [2020] AATA 2022 (15 May 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Sela Finau

CASE NUMBER:  1931391

DIBP REFERENCE(S):  CLF2007/114090

MEMBER:  Kira Raif

DATE:  15 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 visa:

·Regulation 2.03AA(2)

Statement made on 15 May 2020 at 10:49am

CATCHWORD
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – character test – statement from an appropriate authority – completed Form 80 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cls 804.225; 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 Immigration to refuse to grant the applicant an Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 20 June 2007. The criteria for a Aged Parent (Residence) (Class BP) visa are set out in Schedule 2 to the Migration Regulations 1994 (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: r.2.03AA(1). In this case, cl. 804.225 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in r.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 r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.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 17 October 2019 on the basis that the applicant did not meet r.2.03AA because the applicant failed to provide the Australian police certificate and completed Form 80. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Has the applicant provided a completed approved Form 80?

6. 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 and a completed Form 80.

7. The applicant provided to the Tribunal a copy of the primary decision which indicates that the delegate requested her to provide the AFP certificate and Form 80 but the applicant had not done so within the time allowed.

8. The applicant provided to the Tribunal a copy of the AFP Certificate dated 7 June 2019, which shows that there are no disclosable outcomes, as well as the completed Form 80.

9. As the applicant has provided a completed approved Form 80 and a statement from the appropriate Australian authority, she therefore meets r.2.03AA(2)(a) and (b).

   Conclusion

10. On the basis of the above findings, the applicant meetsr.2.03AA(2).

Case Number 1931391  Page 2 of 3

DECISION

1. The Tribunal remits the application for an Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 visa:

   ·Regulation 2.03AA(2).

   Kira Raif

   Senior Member

Case Number 1931391  Page 3 of 3