Hiendra (Migration)

[2019] AATA 4670

Hiendra (Migration) [2019] AATA 4670 (18 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Lenny Hiendra

VISA APPLICANTS:  Mr Djulkui Frily
Mrs Mie Sioe Jap

CASE NUMBER:  1926832

DIBP REFERENCE(S):  OSF2008/098209

MEMBER:Kira Raif

DATE:18 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Parent (Migrant) (Class AX) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 103 visa:

·Regulation 2.03AA(2)

Statement made on 18 October 2019 at 10:30am

CATCHWORDS
MIGRATION – Parent (Migrant) (Class AX) visa – Subclass 103 – Public Interest Criterion 4001 – authorised criminal clearance certificate not provided to delegate – Australian and Indonesian police certificates provided to Tribunal – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2, cl 103.224, Schedule 3, 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 Immigration to refuse to grant the applicants Parent (Migrant) (Class AX) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 15 December 2008.

2. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: r.2.03AA(1). In this case, cl.103.224 of Schedule 2 of the Regulations requires the applicant to meet PIC4001. The applicant is therefore required to satisfy the criterion in r.2.03AA(2).

3. 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 r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

4. The delegate refused to grant the visas on 30 July 2019 on the basis that the applicants did not meet r.2.03AA because the visa applicants did not submit their Indonesian police certificates. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Has the applicant provided a statement from an appropriate authority?

5. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that in November 2017 the delegate wrote to the visa applicants inviting them to provide their Indonesian police certificates. The visa applicants had not done so within the time permitted and the delegate was not satisfied the applicants met PIC 4001.

6. In September 2019 the review applicant provided to the Tribunal copies of the AFP and Indonesian police certificates in relation to each of the visa applicants. The Tribunal is satisfied that the visa applicants had provided statements from an appropriate authority. They therefore meet r.2.03AA(2)(a).

   Conclusion

7. On the basis of the above findings, the applicants meet r.2.03AA(2).

   DECISION

8. The Tribunal remits the applications for Parent (Migrant) (Class AX) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 103 visa:

   ·Regulation 2.03AA(2).

   Kira Raif
   Senior Member