Joseph (Migration)

[2020] AATA 4996

Joseph (Migration) [2020] AATA 4996 (12 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Priyanthan Michael Paul Joseph

VISA APPLICANT:  Mr Samuel Chithranjan Marian Joseph

CASE NUMBER:  1823256

DIBP REFERENCE(S):  BCC2018/1565428 CLF2018/192694

MEMBER:Moira Brophy

DATE:12 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 visa:

·Regulation 2.03AA(2)

Statement made on 12 November 2020 at 12:58pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – criminal history statement – statements from relevant countries provided – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

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

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in the present case is whether the visa applicant, Mr Samuel Chithranjan Marian Joseph meets public interest criteria (PIC) 4001 referred to in cl.600.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of a Visitor (Tourist) Subclass 600 visa.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

3. The applicant applied for the visa on 7 April 2018. The criteria for a Visitor (Class FA) visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

4. 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. 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 r.2.03AA (2).

5. sRegulation 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.

6. On 4 June 2018 the delegate refused to grant the visa on the basis that the applicant had not provided a police certificate or other statement provided by an appropriate authority in each country the applicant had resided in for a total of twelve months or more in the last ten years. That document was required as it provides evidence about whether the applicant has a criminal history. Since the document had not been provided the visa applicant was not able to satisfy the prescribed criterion in paragraph 2.03AA (2 all) and accordingly he did not meet the criterion for the grant of a Visitor (Tourist) Subclass 600 visa.

7. The applicant seeks review of this decision.

8. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Relevant law

9. One of the criteria for the grant of a Subclass 600 visa is cl.600.213 which requires that the applicant meets Public Interest Criteria including PIC 4001. Where a person is required to satisfy PIC 4001 for the grant of a visa, there are additional criteria prescribed under r.2.03AA that must be met for the grant of visa. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s character and criminal history.

10. Regulation 2.03AA(1) states that, in addition to the criteria prescribed by Regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or PIC 4002 for the grant of a visa, the criterion in sub regulation (2) is prescribed.

11. Regulation 2.03AA (2) provides that iif the Minister has requested the following documents or information, the person has provided the documents or information:

    (a)  a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

    (b)  a completed approved form 80.

    Does the applicant meet Regulation 2.03AA?

12. Although the delegate found that the applicant did not satisfy cl.600.213, this finding appears to have been made on the basis that as the applicant failed to provide the police certificate and did not meet r.2.03AA, which was necessary for an assessment of PIC 4001.

13. On 22 April 2018 Mr Samuel C.M. Joseph uploaded to his account a UK Police Certificate dated 1 August 2016 as he had lived there in the period from February 1989 to December 2015. He noted he had previously provided this information to the Department in August 2016. He advised he had moved to Spain in December 2015 and had lived there since that time. He had previously provided a Certificate from the Central Registry of Criminal Records in Spain.

14. The Tribunal is satisfied that the Minister requested a statement provided by an appropriate authority in a country where a person resides, or has resided, which provides evidence about whether or not the person has a criminal history. The Tribunal is satisfied that the applicant has now provided to the Tribunal copies of the AFP certificates. A completed form 80 appears on the Departmental file. The Tribunal is satisfied that the applicant meets r.2.03AA (2) and therefore meets r.2.03AA.

15. Although the delegate found that the applicant did not satisfy cl.600.213, this finding appears to have been made on the basis that as the applicant failed to provide the police certificate and did not meet r.2.03AA, which was necessary for an assessment of PIC 4001. As the applicant has provided the police certificate, the delegate is now able to assess whether the applicant meets PIC 4001 for the purposes of cl.600.213.

16. The Tribunal considers the appropriate course of action is to remit the application to the Minister to undertake consideration of whether the applicant meets PIC 4001 for the purposes of cl.600.213 and the remaining criteria for the grant of a Subclass 600 visa.

    DECISION

17. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 visa:

    ·Regulation 2.03AA (2).

    Moira Brophy
    Member