Johnston (Migration)

[2021] AATA 5651

Johnston (Migration) [2021] AATA 5651 (2 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Elizabeth Lee Johnston

CASE NUMBER:  2107679

HOME AFFAIRS REFERENCE:               BCC2020/2511139

MEMBER:L. Symons

DATE:2 November 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:

·Regulation 2.03AA(2)

Statement made on 02 November 2021 at 2:43pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – criminal history – statement from an appropriate authority – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 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 October 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(1) 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 March 2021 on the basis that the applicant did not meet reg 2.03AA because she did not satisfy reg 2.03AA(2)(a).

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

   consideration of claims and evidence AND FINDINGS

7. The issue in this case is whether the applicant has provided statements by appropriate authorities that provides evidence about whether or not the person has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

8. On 9 November 2020 and 13 January 2021, the Department wrote to the applicant requesting that she provide statements from an appropriate authority in Canada/Australia/other country that includes evidence about whether or not she has a criminal history. She was requested to respond within 28 days. She did not provide the requested statements or any evidence that she had attempted to obtain the statements.

9. The applicant has provided statements from an appropriate authority in Canada and in Australia and therefore meets reg 2.03AA(2)(a).

   Conclusion

10. On the basis of the above finding, the applicant meets reg 2.03AA(2).

    decision

11. 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).

    L. Symons
    Member