Gondara (Migration)

[2021] AATA 1914

Gondara (Migration) [2021] AATA 1914 (31 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Paramjeet Kaur Gondara

CASE NUMBER:  2105267

HOME AFFAIRS REFERENCE(S):          BCC2020/1741787

MEMBER:Jane Marquard

DATE:31 May 2021

PLACE OF DECISION:  Sydney

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:

·Public Interest Criteria 4001 and Regulation 2.03AA(2) for the purposes of Schedule 2 to the Regulations

Statement made on 31 May 2021 at 11:36am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – character test – statement from an appropriate authority – Police Clearance Certificate issued by the Consulate General of India – National Police Certificate from the Australian Federal Police – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 501

Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 600.213; Schedule 4, PIC 4001

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 April 2021 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 15 June 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. Relevantly to this case, they include cl 600.213(1), which requires that the visa applicant satisfy Public Interest Criteria 4001(PIC 4001) of Schedule 4 to the Regulations. The visa applicant must also satisfy Regulation 2.03AA which requires that if requested, the applicant provide 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.213(1) because police clearance documents had not been provided as requested such that the delegate was not satisfied that the applicant met PIC 4001 or Reg 2.03AA.

5. There was no need to hold a hearing in this matter as the Tribunal was able to determine the matter in favour of the applicant on the papers as relevant documents have now been provided.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The first issue in this case is whether the applicant meets PIC 4001. The second issue is whether the applicant meets Reg 2.03AA which requires the applicant to have provided appropriate police clearance documents.

8. PIC 4001 is set out in Schedule 4 to the Regulations. It provides that either:

   (a)       the person satisfies the Minister that she/he passes the ; or

   (b)       the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant/person would fail to satisfy the Minister that she/he passes the character test; or

   (c)       the Minister has decided not to refuse to grant a visa to the applicant/person despite reasonably suspecting that she/he does not pass the character test; or

   (d)       the Minister has decided not to refuse to grant a visa to the applicant/person despite not being satisfied that she/he passes the character test.

9. The delegate was not satisfied that the applicant met PIC 4001 as police clearance documents had not been provided, despite requests on a number of occasions.

10. On 5 May 2021 the applicant provided to the Tribunal a Police Clearance Certificate dated 25 March 2021 issued by the Consulate General of India, Melbourne. The certificate certified that there was no adverse information against the applicant which would render her ineligible for a tourist visa. She also provided to the Tribunal a National Police Certificate from the Australian Federal Police dated 9 February 2021 certifying that there are no disclosable court outcomes recorded against the applicant’s name.

11. The Tribunal is satisfied on the basis of these documents that the applicant meets PIC 4001(b) in that after appropriate enquiries there is nothing to indicate that the applicant would fail to satisfy the Minister that she passes the character test set out in s 501(6) of the Act. These police clearance certificates indicate that there is no adverse information about the applicant which would result in her not meeting any of the categories set out in s 501(6).

12. Regulation 2.03AA requires that where the Minister has requested certain documents or information from an appropriate authority where the applicant has resided, the person has provided the documents or information. The Department requested that the applicant provide police clearance documents on 18 November 2020 and 14 January 2020. The applicant has now provided those documents from the appropriate authority in India, where she resided, as referred to earlier. The Tribunal is therefore satisfied that the applicant meets Regulation 2.03AA(a).

    DECISION

13. 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) (Class FA) visa:

    ·Public Interest Criteria 4001 and Regulation 2.03AA for the purposes of cl 600.213(1) of Schedule 2 to the Regulations.

    Jane Marquard
    Member