Nam (Migration)

[2020] AATA 2403

Nam (Migration) [2020] AATA 2403 (12 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Minkyoung Nam

CASE NUMBER:  1828573

DIBP REFERENCE:  BCC2017/965612

MEMBER:Rosa Gagliardi

DATE:12 June 2020

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) Subclass 820 visa for reconsideration, with the direction that the applicant meets the following criterion:

·Public Interest Criterion 4001 for the purposes of cl.820.223 to the Regulations.

Statement made on 12 June 2020 at 11:04am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Partner) – criminal history statement – expired AFP certificate provided to department – current certificate provided to tribunal – no disclosable outcomes – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 2, cl 802.223, Schedule 4, criterion 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 Immigration on 11 September 2018 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 11 March 2017. The delegate refused to grant the visa on the basis that the applicant at the time of application had not provided a relevant Australian Federal Police (AFP) Clearance and therefore did not meet Public Interest Criterion (PIC) 4001. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. PIC 4001 requires that the Department 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 since turning 16 years of age.  A police certificate is a statement provided by the appropriate authority that provides evidence about whether or not the person has a criminal history.  This statement is the key source of information as to a person’s character.

5. The relevant law is set out below:

   cl.820.22 Criteria to be satisfied at time of decision

   cl.820.223

   (1)The applicant:
        (a) subject to subclause (2) – satisfies public interest criteria 4001, 4002,
        4003, 4004, 4007 and 4009; and
        (b) if the applicant had turned 18 at the time of application – satisfies public
         interest criterion 4019.

6. As the applicant is required to satisfy PIC 4001 for the grant of the visa, regulation 2.03AA applies:

   Criteria applicable to character tests and security assessments
   (1)   In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

   (2)If the Minister has requested the following documents or information, the person has provided the documents or information:
   (a)   a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

   (b)  a completed approved form 80.
   Note: For paragraph (a), an example of an appropriate authority is a police force.

   (3)    The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement. 

7. After reassessing the visa application, a delegate of the Minister sent the applicant correspondence by email on 21 April 2018, requesting further information which included a request for an Australian Federal Police clearance.  The AFP certificate lodged with the applicant’s application was dated 21 February 2017 and had therefore expired.  The applicant then went on to lodge with the Department evidence of having applied to the AFP for her clearance on 28 May 2018.  The applicant had obtained an AFP clearance dated

   
   

   30 May 2018 but for some reason the applicant had not submitted it to the Department (even though she submitted it to the Tribunal). 

8. As such, the Department found that the applicant did not meet the prescribed criterion in subclause 2.03AA(2)(a), and therefore did not meet sub-regulation 2.03AA(2).  

9. The Tribunal at the time of review had regard to the applicant’s clearance dated 30 May 2018, but requested that she provide an updated AFP clearance as its validity had now expired.  On 10 June 2020 the applicant submitted to the Tribunal an AFP National Police Certificate issued on 4 June 2020, stating that there were no disclosable outcomes recorded against the name of the applicant for all Australian jurisdictions.

10. The Tribunal does not have before it any information that the applicant is required to provide penal clearances from any other country at this stage.

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

    CONCLUSION

12. The Tribunal finds that at the time of review the applicant has submitted an updated and current AFP clearance, dated 4 June 2020, and as such, the Tribunal finds that the applicant meets PIC 4001.

    DECISION

13. The Tribunal remits the application for a Partner (Temporary) (Class UK) Subclass 820 visa for reconsideration, with the direction that the applicant meets the following criterion:

    ·  Public Interest Criterion 4001 for the purposes of cl.820.223 to the  Regulations.

    Rosa Gagliardi
    Member