Llige (Migration)

[2021] AATA 2827

Llige (Migration) [2021] AATA 2827 (29 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Anna Leah Llige

CASE NUMBER:  1838182

HOME AFFAIRS REFERENCE(S):          BCC2016/3623609

MEMBER:Justin Meyer

DATE:29 June 2021

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 29 June 2021 at 11:44am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – National Police Clearance from AFP provided – no criminal record for the applicant from home country –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 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 31 October 2016. 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, 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 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 19 December 2018 on the basis that the applicant did not meet reg 2.03AA because (per his decision):

   “I am not satisfied that on the day I made my decision you met the legal requirement in subclause 820.223 in Schedule 2 to the Regulations.”

   …

   “PIC 4001 requires section 65 delegates to assess a person against the terms of the ‘character test’. Under policy, a component of assessing a person against PIC 4001 for temporary or permanent migration is the provision of a police certificate for each country in which that person has lived for 12 months or more, over the last 10 years, since turning 16 years of age.”

   “You provided evidence that you had lived in the following country for a cumulative period of 12 months or more, over the last 10 years, since turning 16 years of age:

   -Philippines

   After assessing your visa application, a delegate of the minister sent you a request letter via email on 26 March 2018 requesting further information, which included a request for police certificates from the abovenamed country. To date, you have not provided the requested document.”

6. On 22 March 2021 the Tribunal received a Republic of the Philippines Department of Justice National Bureau of Investigation certification that there was no criminal record for the applicant (valid until 18 November 2021).

7. The Tribunal earlier received an Australian Federal Police clearance confirming same, dated 12 May 2021.

8. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

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

   DECISION

10. 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).

    Justin Meyer
    Member