Hansantiatanaded (Migration)

[2022] AATA 596

Hansantiatanaded (Migration) [2022] AATA 596 (18 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Tanchanok Hansantiatanaded

CASE NUMBER:  2117580

HOME AFFAIRS REFERENCE(S):          BCC2019/3458540

MEMBER:Christine Kannis

DATE:18 March 2022

PLACE OF DECISION:  Perth

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 18 March 2022 at 8:11am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 8280 (Spouse) – criminal history statements – police certificate from home country provided to department, AFP national police certificate provided to tribunal – no disclosable court outcomes – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(2), Schedule 2, cl 820.223, Schedule 4, criterion 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 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 10 July 2019. 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 18 November 2021 on the basis that the applicant did not meet reg 2.03AA because a police certificate from Australia had not been provided.

6. No hearing was held in this case because the Tribunal determined it was able to make a favourable decision on the materials before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant has provided a statement from an appropriate authority in Australia that provides evidence about whether or not she has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

9. On 16 December 2020 the Department requested the applicant provide a police certificate for Australia and Thailand.  The applicant provided a police certificate for Thailand issued on 8 January 2021. The applicant did not provide a police certificate for Australia.

10. On 14 January 2021 the Department again requested the applicant provide a police certificate for Australia. She was requested to provide the certificate within 28 days. The police certificate was not provided within the requested timeframe and following two attempts to contact the applicant by telephone on 19 April 2021 and 7 May 2021, the visa was refused.

11. On 25 November 2021 the applicant provided a National Police Certificate dated 12 January 2021 issued by the Australian Federal Police (AFP) which certified that the applicant has no disclosable court outcomes recorded against her name.  On 28 February 2022 the applicant provided an updated National Police Certificate AFP certificate dated 17 February 2022 which certified that she has no disclosable court outcomes recorded against her name. 

12. The applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

    Conclusion

13. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in reg 2.03AA(2)( (b) does not apply.

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

    DECISION

15. 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).

    Christine Kannis
    Member