Kim (Migration)

[2020] AATA 2827

Kim (Migration) [2020] AATA 2827 (28 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jinsil Kim

CASE NUMBER:  1912581

DIBP REFERENCE(S):  BCC2017/5007479

MEMBER:P. Maishman

DATE:28 May 2020

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 28 May 2020 at 9:43am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – National Police Clearance from AFP provided –Records check reply from Korean National Police Agency provided –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA, Schedule 2, cl 820.223

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 applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 December 2017. The criteria for a Partner (Temporary) (Class UK) 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.

3. 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.820.223(1)(a) 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).

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 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.

5. The delegate refused to grant the visa on 17 May 2019 on the basis that the applicant did not meet r.2.03AA because she did not provide a statement from an appropriate authority about whether she has a criminal history.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant based on the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. There is no indication the delegate requested the applicant to provide a completed Form 80.

9. The issue in this case is whether the applicant has provided a statement by the appropriate authorities that provide evidence about whether she has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

10. The applicant gave the Tribunal a copy of the delegate’s decision record which summarises the issue. The delegate says the applicant gave evidence of having resided in Australia and South Korea for more than 12 months in the last 10 years. The applicant was requested by email on 31 December 2018 to provide statements from the appropriate authorities in Australia and South Korea. The delegate reports the Department did not receive a statement from an appropriate authority in Australia or South Korea or a claim or evidence that it was not reasonable for the statements to be provided. The delegate refused the application because the applicant did not meet regulation 2.03AA(2).

11. The Tribunal has considered the information provided in the delegates decision record and accepts the Department requested the applicant to provide statements from the appropriate authorities in Australia and South Korea. The Department did not receive the requisite statements from the appropriate authority in Australia or South Korea, nor a claim by the applicant that it was unreasonable to provide the statements.    

12. The applicant’s representative emailed the Tribunal copies of a National Police Clearance dated 26 July 2019 from the Australian Federal Police and a Criminal (Investigation) Records Check Reply dated 23 June 2017 from the Korean National Police Agency. On 28 May 2020 the Tribunal received an updated Criminal (Investigation) Records Check Reply dated 27 May 2020 from the Korean National Police Agency.

13. The applicant has provided statements from the appropriate authorities in countries in which she has resided about whether she has a criminal history and therefore meets r.2.03AA(2)(a).

    Conclusion

14. Based on the above findings, the applicant meets r.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).

    P. Maishman
    Member