Gamoga (Migration)

[2023] AATA 2259

Gamoga (Migration) [2023] AATA 2259 (20 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thelma Tai Gamoga
Mr Naga Gamoga 
Mr Soroi Gamoga
Mr Juan Gamoga

CASE NUMBER:  2211067

HOME AFFAIRS REFERENCE(S):          BCC2021/1318367

MEMBER:Penelope Hunter

DATE:20 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 20 July 2023 at 2:36pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – criminal history statement – appearance at hearing by secondary applicant husband only – first and second applicants now separated – difficulty in obtaining certificates during COVID pandemic – no demonstrated reason to waive requirement – no discretion to waive requirement for completed Form 80 – no evidence of health insurance – members of family unit – husband and children – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 2.03AA(1), (2)(a), (b), (3), Schedule 2, cl 500.217(1), 500.311, Schedule 4, criteria 4001, 4002

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 applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 28 June 2021. The criteria for a Student (Temporary) (Class TU) 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, 500.217 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. The delegate refused to grant the visas on 13 July 2022 on the basis that the applicant did not satisfy cl 500.217(1) of the Regulations.

6. On 30 June 2023, the applicants were invited under s 360 of the Act to appear before the Tribunal at a hearing on 20 July 2023, at 10:30 am via Microsoft Teams video.

7. On 7 July 2023, the applicants were invited to attend a test session on Microsoft Teams in anticipation of the hearing. The applicants did not attend the test session, the Tribunal was unable to contact them by phone. Additionally, when contacted, the representative of the applicants advised that they would not be attending the hearing.

8. On 13 July 2023 and 19 July 2023, SMS reminders of the hearing were sent to the number provided by the primary visa applicant, Ms Thelma Tai Gamoga.

9. On 20 July 2023, the representative of the applicants wrote to the Tribunal and advised that they had discussed the matter with the applicants and no longer represented them.

10. Mr Naga Gamoga only attended the hearing on 20 July 2023, to give evidence and present arguments. The Tribunal attempted to phone Ms Thelma Tai Gamoga at the hearing time unsuccessfully.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. In their decision record, a copy of which the applicants have provided to the Tribunal, the delegate set out that on 19 August 2021, the applicants had been requested to provide a statement from a relevant authority in a country which the applicants reside or has resided that provides evidence about whether or not the applicants had a criminal history, overseas student health cover, a statement addressing the genuine temporary entry criteria and evidence of completion of health examinations.

14. On 19 May 2022, a request was again made for the applicants to provide, amongst other things, police clearance certificates being a statement from a relevant authority in a country which the applicants reside or has resided that provides evidence about whether or not the applicants had a criminal history, overseas student health cover, a Form 80 Personal particulars for character assessment, and evidence of enrolment in a course of study. When no material was forthcoming the delegate proceeded to determine to refuse the visa.

15. In anticipation of the hearing, the applicants were requested to provide to the Tribunal police clearance certificates being statements from a relevant authority in a country the applicants reside or has resided that provides evidence about whether or not the applicants had a criminal history, Form 80 – Personal particulars for character assessment, evidence of overseas student health cover and a current confirmation of enrolment for the Ms Tai Gamoga in registered course of study.

16. Mr Gamoga told the Tribunal at the hearing that Ms Gamoga had informed him that she did not attend to participate in the Tribunal hearing. He said that he was attending the hearing as a matter of courtesy to the Tribunal. At the time the visa application was made he said that he and Ms Gamoga were together, but since lodging the review application they had separated and Ms Gamoga had relocated to Brisbane.

17. The Tribunal discussed the issues relevant to the review with him. He acknowledged he was aware that police clearance certificates and other documents were outstanding. He said that initially when requested it was difficult to obtain the certificates from Papua New Guinea during the COVID-19 pandemic. He acknowledged that now circumstances had changed.

18. As Ms Gamoga has not provided a statement from an appropriate authority and she therefore does not meet reg 2.03AA(2)(a). The Tribunal has therefore considered whether it would not be reasonable for the applicant to provide the statement, and whether the requirement to provide it should be waived.

19. Ms Gamoga has not engaged with the Tribunal review process. It is noted that she has been aware of the reasons for refusal since the delegate’s decision of 13 July 2022, and the requirement to provide the documents since the Department request in August 2021. The Tribunal has considered Mr Gamoga’s comments about the difficulties obtaining relevant documents during the COVID-19 pandemic in 2021, however it is not demonstrated to the Tribunal that any COVID related closures still persist. Furthermore, there is no evidence that relevant clearance certificates were unavailable from Australian authorities. The applicants have had two years to provide police clearance certificates from Australia, Papua New Guinea and any other country in which they have resided and no material has been forthcoming. It is considered reasonable for the applicants to have provided these statements and it is not demonstrated to the Tribunal that the requirement should be waived. The waiver in reg 2.03AA(3) does not apply. Therefore, as the statement has not been provided, the applicant does not meet reg 2.03AA(2)(a).

20. Furthermore, the Tribunal cannot waive the requirement for the applicant to provide a completed approved Form 80, if follows that she also does not meet reg 2.03AA(2)(b). This requirement cannot be waived.

21. On the basis of the above findings, the primary applicant, Ms Thelma Tai Gamoga does not meet reg 2.03AA(2) of the Regulations. Consequently she cannot satisfy PIC 4001 and PIC 4002 and the requirements of cl 500.217 of Schedule 2 to the Regulations for the grant of a Student visa are not met.

22. Furthermore, it is also a requirement for the grant of a Student visa that the applicants give evidence of adequate arrangements of health insurance during the period of their intended stay in Australia. While it is not necessary for the Tribunal to make a finding in this matter, the Tribunal takes note that no evidence of relevant cover has been provided to the Department or the Tribunal despite requests. The applicant would not meet cl 500.214 of Schedule 2 of the Regulations and this would be a further ground for the refusal of the visas.

23. Mr Gamoga and the third and fourth named visa applicants have sought the visa on the basis of being a member of the family unit of Ms Gamoga, who is a person who holds a Student visa. As the Tribunal has found that Ms Gamoga does not meet the primary criteria for the grant of a Student visa, they would also not meet the secondary criteria in cl 500.311 of Schedule 2 to the Regulations and it follows that their visas are also refused. It is also noted from the evidence presented that Mr Gamoga has separated from Ms Gamoga and as discussed with him at the hearing, would in any event not likely to be considered as a member of her family unit.

    DECISION

24. The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

    Penelope Hunter
    Member