Mansang (Migration)

[2021] AATA 3952

Mansang (Migration) [2021] AATA 3952 (26 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Mercelita Emlan Mansang

CASE NUMBER:  2102643

HOME AFFAIRS REFERENCE(S):          BCC2017/4322043

MEMBER:Brendan Darcy

DATE:26 July 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 26 July 2021 at 2:50pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – character test – statement from an appropriate authority – National Bureau of Investigation of the Republic of The Philippines – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; 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 15 November 2017. 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, 820.233(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 2 March 2021 on the basis that the applicant did not meet reg 2.03AA because no statement provided by an appropriate authority in a country where the applicant resides, or has resided, that provides evidence about whether or not the person has a criminal history.

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 of the Minister sent the applicant a letter by email on 4 January 2021 requesting further information, which included a request for a police certificate from The Philippines. The applicant did not respond in a timely manner, including requesting an extension of time to provide the relevant evidence. The delegate proceeded to refuse the visa on 2 February 2021. In March 2021, the delegate even attempted to phone the applicant on various mobile phone numbers to confirm the email address. However, the listed numbers were not connected. The delegate proceeded to refuse the applicant a partner visa on 2 March 2021.

9. An application to have delegate’s refusal decision reviewed by the Tribunal was validly lodged on 3 March 2021.

10. On 11 May 2021, the Tribunal wrote to the applicant requesting a current Filipino police certificate to be submitted to it, and to do so by 25 May 2021.

11. On 25 May 2021, the Tribunal received a certificate issued 10 May 2021 pertaining to the applicant. The document was issued by the National Bureau of Investigation of the Republic of The Philippines.

12. This document or statement is suitable for the purposes of subregulation 2.03AA(2)(a).

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

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

    Conclusion

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

    DECISION

16. 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