Goh (Migration)

[2022] AATA 4903

Goh (Migration) [2022] AATA 4903 (30 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Le Yong Goh

REPRESENTATIVE:  Mr Jason Browne (MARN: 1576529)

CASE NUMBER:  1909417

HOME AFFAIRS REFERENCE(S):          BCC2015/2157323

MEMBER:Stephen Conwell

DATE:30 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·Regulation 2.03AA(2)

Statement made on 30 November 2022 at 2:48pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – a police certificate of good conduct issued by the government of Malaysia provided – PIC 4001 – decision under review remitted 

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 2.03AA(2), Schedule 2, cl 820.223

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 Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 July 2015. The criteria for a Partner (Temporary) (Class UK) 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, 820.223 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 28 March 2019 on the basis that the applicant did not meet reg 2.03AA because the applicant had been requested to provide a statement from a relevant authority in Malaysia.

6. The applicant had provided evidence that she had resided in Malaysia for a period of twelve months or more in the ten years prior to the time of application, and since the applicant had turned sixteen years of age.  The applicant had not provided a statement from a relevant authority from Malaysia at the time of the Department decision, and therefore the delegate found the applicant did not satisfy r.2.03AA(2) for the purposes of PIC 4001.

7. The applicant was represented in relation to the review by her registered migration agent.

8. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

9. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    consideration of claims and evidence

11. 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?

12. The applicant lodged the application for the visa on 28 July 2015.  The Department made it first request for the applicant to provide the statements from the relevant authority on 1 June 2016. The applicant had not provided the statements from the relevant authorities from Malaysia at the time of the Department’s decision record which is dated 28 March 2019.

13. The applicant applied for a review of the Department decision, on 16 April 2019.  The applicant did not provide the statements from the relevant authority of Malaysia to the Tribunal at this time.  The Tribunal wrote to the applicant on 1 May 2019 requesting the applicant provide the relevant police certificate from Malaysia. On 14 May 2019 the applicant, through her representative advised the Tribunal that several months delay were to expected in obtaining the police certificate.

14. Between June 2019 and November 2022 the representative provided the Tribunal with updates regarding the efforts being made to obtain the relevant police certificate from Malaysia.

15. On 30 November 2022 the Tribunal received from the applicant a police certificate of good conduct issued by the government of Malaysia on 16 November 2022. The Tribunal is satisfied that the applicant has provided the Tribunal with the statement from the relevant authority from Malaysia.

16. The applicant has provided the relevant police certificate from an appropriate authority from Malaysia, and therefore meets r.2.03AA(2)(a).

    Conclusion

17. On the basis of the above finding, the applicant meets the requirements of r.2.03AA(2).

    decision

18. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·Regulation 2.03AA(2).

    Stephen Conwell
    Member