Low (Migration)

[2021] AATA 4323

Low (Migration) [2021] AATA 4323 (30 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wei Long Low

CASE NUMBER:  1804317

HOME AFFAIRS REFERENCE(S):          BCC2016/3381295

MEMBER:Justine Clarke

DATE:30 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 30 August 2021 at 12:35pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – criminal history – statement from an appropriate authority – Malaysian police clearance not provided – decision under review affirmed

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 on 13 February 2018 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. On 12 October 2016, the applicant applied for the visa. 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: r.2.03AA(1). In this case, cl.820.223 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. Therefore, the applicant is 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 or not the person has a criminal history. 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).

5. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

6. The applicant provided the Tribunal with a copy of the primary decision. On 13 February 2018, the delegate refused to grant the visa on the basis that the applicant did not meet r.2.03AA(2) because r.2.03AA(2)(a) was not met. The decision stated that the applicant had not provided a Malaysian police certificate and thus did not meet r.2.03AA(2)(a). In addition, the delegate found that r.2.03AA(3) did not apply because the applicant had not provided any claims or evidence to satisfy the delegate that it was not reasonable for the applicant to provide the requested police certificate or statement. The primary decision was silent as to whether r.2.03AA(2)(b) had been satisfied.

7. On 19 February 2018, the applicant applied to the Tribunal for the review of that decision.

8. On 18 May 2020, the Tribunal wrote to the applicant, by email, to request him to provide a copy of the police certificate from Malaysia, where the applicant had lived for a total of 12 months or more, in the last 10 years, since turning 16 years. The Tribunal requested that the information be provided by 1 June 2020. No response was received.

9. On 10 May 2021, the Tribunal wrote to the applicant again, by email. The Tribunal requested him to provide police certificates from each country where he had lived for a total of 12 months or more, in the last 10 years, since turning 16 years of age. The Tribunal requested that the information be provided by 24 May 2021. No response was received.

10. Due to the COVID-19 pandemic and associated restrictions in Melbourne, the Tribunal did hold an in-person hearing. Rather, on 12 August 2021, the applicant appeared, by telephone, before the Tribunal to give evidence and present arguments. An interpreter in the Mandarin and English languages also attended the telephone hearing.

11. At the hearing, the applicant told the Tribunal that he had not received the Tribunal’s correspondence about the hearing. He said that he had not changed email address but speculated that perhaps the emails had gone straight to his ‘junk’ email folders. He said that he had very limited time to speak to the Tribunal because he was at work. For this reason, he offered not to be assisted by the professional interpreter and said that he was prepared to give his oral evidence in English.

12. At the hearing, the Tribunal informed the applicant of his obligation to keep the Tribunal informed of his contact details and to monitor all of his email folders. The Tribunal outlined the issue in dispute. The applicant said that it was not possible for him to provide a certificate to the Tribunal because it was necessary for him to go in person to Malaysia to do that and he could not go because of the pandemic and border restrictions. He asked for the matter to be deferred until the end of 2021. The Tribunal responded by stating that it required evidence in support of his claim that he could not get the certificate without going to Malaysia. The Tribunal said that it would list the matter for a further hearing in one month so that the applicant had further time to submit evidence in support of his case.   

13. On 13 August 2021, the Tribunal wrote to the applicant at his updated email address (provided on 12 August 2021) to invite him to the resumed hearing, again by telephone, on 9 September 2021.

14. On 30 August 2021, the applicant submitted a completed form entitled ‘response to resumption of adjourned hearing notice – MR Division’. In the form he indicated that he would not participate in the hearing and consented to the Tribunal making a decision on the papers without taking any further steps to allow him to appear. He also indicated ‘no’ to the question about whether he intended to rely on any documents at the hearing. The resumed hearing scheduled for 9 September 2021 was cancelled on the basis of the responses given in the form.   

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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. (The Tribunal has reviewed the documents on the Department’s file and notes that the applicant provided a completed Form 80 to the Department. Accordingly, r.2.03AA(2)(b) appears to be met).

    Has the applicant provided a statement from an appropriate authority?

17. The primary decision sets out the chronology of events. For present purposes, it is sufficient to note that, as at 13 February 2018, which is when the delegate made the refusal decision, the delegate found that the applicant had not provided a Malaysian police clearance pursuant to the Department’s written requests commencing on 12 October 2016.

18. Despite the requests from the Department and the requests from the Tribunal (outlined above), the applicant has not provided a statement from an appropriate authority. Therefore, the applicant does not meet r.2.03AA(2)(a).

19. The Tribunal has considered whether it would not be reasonable for the applicant to provide the statement, and whether the requirement to provide it should be waived. The applicant has provided no evidence from the appropriate authority in Malaysia to support his claim. The Tribunal is not satisfied that it is not reasonable for the applicant to provide the requested statement from an approved authority. The waiver in r.2.03AA(3) does not apply. Therefore, as the statement has not been provided, the applicant does not meet r.2.03AA(2)(a).

    Conclusion

20. On the basis of the above findings, the applicant does not meet r.2.03AA(2).

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Justine Clarke
    Member