Lee (Migration)

[2022] AATA 4648

Lee (Migration) [2022] AATA 4648 (10 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Li Peng Lee

REPRESENTATIVE:  Ms Pei Ling Ngu

CASE NUMBER:  2214917

HOME AFFAIRS REFERENCE(S):          BCC2021/1473934

MEMBER:Brendan Darcy

DATE:10 November 2022

PLACE OF DECISION:  Melbourne

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 10 November 2022 at 9:15am

CATCHWORDS  
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – character test – statement from an appropriate authority – certificate of good conduct issued by the High Commission of Malaysia – decision under review remitted 

LEGISLATION 
Migration Act 1958 (Cth), s 65 
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 820.223; 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 Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 July 2021. 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 8 October 2021 on the basis that the applicant did not meet reg 2.03AA because the applicant had not provided a police clearance certificate or statement provided by an appropriate authority in the Federation of Malaysia (Malaysia).

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

   consideration of claims and evidence

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

   Has the applicant provided a statement from an appropriate authority?

8. After assessing the visa application, a delegate on behalf of the Minister sent the applicant an email on 18 October 2021, requesting further information, which included a request for police certificate from Malaysia.

9. On 12 January 2022, the Department further requested the applcaint to provide evidence of a Malaysian police certificate.

10. On 7 February 2022, the sponsor of the applciant’s partner visa advised the Department in the difficulties the applciant had in obtaining the requested documents.  On 8 February 2022, the Department indicated to the applciant extension would be provided for applciant given the then current situation with Covid-19 .

11. On 21 May 2022, the sponsor sent an email that the applicant received a police certificate but needed to collet the document from Melbourne which was extremely difficult at the time due to Covid restrictions and her inability to travel. On 2 June 2022, the sponsor sent another email advising the same difficulties as in the email dated 21 May 2022.

12. Due to the applicant’s unresponsiveness, the delegate proceeded to refuse the visa on 19 September 2022.

13. The applicant validly applied to have the refusal decision reviewed by the Tribunal on 10 October 2022.

14. On 21 October 2022, the Tribunal received a copy of the applicant’s certificate of good conduct issued by the High Commission of Malaysia in Canberra issued on 11 February 2022.

15. The Tribunal is satisfied that the applicant has provided statements from the appropriate authorities, as requested, and therefore meets reg 2.03AA(2)(a).

16. Based on this information, no scheduled hearing was required to reach a favourable decision in this matter.

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

    decision

18. 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).

    Brendan Darcy
    Member