Goncalves (Migration)

[2022] AATA 3760

Goncalves (Migration) [2022] AATA 3760 (11 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Maria Jose Rocha Mafra Goncalves

REPRESENTATIVE:  Mr Rasan T Selliah

CASE NUMBER:  2104779

HOME AFFAIRS REFERENCE(S):          BCC2020/1407977

MEMBER:Naomi Schmitz

DATE:11 October 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 visa:

·Regulation 2.03AA(2).

Statement made on 11 October 2022 at 12:37pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – evidence of criminal history – Brazilian Federal and State penal certificates and Australian Federal Police National Police Certificate provided upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 600.213; Schedule 4, Public Interest Criteria 4001; r 2.03AA

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 21 April 2020. 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, cl.600.213 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. On 25 March 2021, the delegate refused to grant the visa on the basis that the applicant did not meet reg 2.03AA because the applicant failed to provide a police clearance from Australia and overseas.

6. On 29 April 2021 the Tribunal wrote to the applicant and requested that the applicant provide the following information:

   ·Australian Federal Police (AFP) national police check as specified in the decision record and requested prior by the Department; and

   ·Police certificate(s) from each country you have lived for a total of 12 months or more in the last 10 years as specified in the decision record and requested prior by the Department.

7. The applicant was requested to provide the above information in writing by 13 May 2021. The Tribunal did not receive a response.

8. On 25 May 2021 the representative wrote to the Tribunal stating, ‘The applicant has requested additional time of 28 days due to “family (serious) issues’. The Tribunal did not receive any further information or evidence in support of the applicant’s application for review.

9. On 8 September 2022 the Tribunal wrote to the applicant to invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 9:30am on 26 September 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

10. On 15 September 2022 an SMS hearing reminder was sent to the applicant’s mobile phone. The Tribunal did not receive an undelivered notification.[1] On 21 September 2022 a second SMS hearing reminder was sent to the applicant’s mobile phone. The Tribunal did not receive an undelivered notification.[2]

    [1] Tribunal Case Note Number 1

    [2] Tribunal Case Note Number 1

11. The applicant and representative did not appear before the Tribunal at 9:30 am on 26 September 2022. The Tribunal attempted to contact the applicant multiple times without success.[3] The Tribunal made contact with the representative who advised that they had been unable to establish contact with the applicant and requested an adjournment of one week. The Tribunal hearings officer advised that all adjournment requests needed to be submitted in writing for the Tribunal Member to consider, rather than verbally to a clerk over the phone. On 26 September at 9:38am the Tribunal received an email requesting a one-week adjournment with no reasons provided. Subsequently on 26 September 2022 at 1:33pm, the Tribunal received a further email stating the applicant sought a one-month adjournment due to making alternative arrangements to collate the requested documentation and no longer relying on the applicant’s daughter who has health issues.

12.   On 26 September 2022, the Tribunal advised that the Tribunal Member had considered the representative’s correspondence which it considered late and discourteous to the Tribunal. The Tribunal Member further noted that the applicant had been requested by the Department approximately two years ago on 26 November 2020 and subsequently on 22 January 2021 to provide information but did not respond. The Tribunal had also contacted the applicant approximately one year and five months ago on 29 April 2021 and requested information regarding the applicant’s Australian and overseas criminal record histories, but she did not respond. The Tribunal Member rescheduled the hearing at 9:00am on 24 October 2022. The Tribunal advised that it is the Tribunal Members expectation that the matter will proceed on that day unless the criminal histories are provided prior to that date.

[3] Tribunal Case Note Number 3

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

   consideration of claims and evidence

2. 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.

3. The primary decision record, a copy of which the applicant provided to the Tribunal, indicates that the applicant failed to provide her AFP NPC and overseas criminal record check upon request by the delegate.

4. On 11 October 2022 the Tribunal received:

   a.A Brazilian Federal and State penal certificates together with English translation dated 28 September 2022; and

   b.An AFP NPC dated 30 September 2022.

5. As the applicant has provided a statement from the appropriate authorities, including from Australia and Brazil she therefore meets reg 2.03AA(2)(a).

   Conclusion

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

   decision

7. 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).

   Naomi Schmitz
   Member