NGUYEN (Migration)

[2018] AATA 4765

NGUYEN (Migration) [2018] AATA 4765 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs THIEN KIM NGUYEN

VISA APPLICANT:  Ms THI TUONG VI NGUYEN

CASE NUMBER:  1826782

DIBP REFERENCE(S):  BCC2017/3990213

MEMBER:Russell Matheson

DATE:8 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Contributory Parent (Temporary) (Class UT) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 173 visa:

·Regulation 2.03AA(2)

Statement made on 08 October 2018 at 11:03am

CATCHWORDS
MIGRATION – Contributory Parent (Temporary) (Class UT) visa – Subclass 173 (Contributory Parent (Temporary) – Police clearance – no criminal record – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA Schedule 2

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 to refuse to grant the applicant a Contributory Parent (Temporary) (Class UT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 October 2017. The criteria for a Contributory Parent (Temporary) (Class UT) visa are set out in Schedule 2 to the Migration Regulations 1994 (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, r.2.03AA(2)(a) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore 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. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80.

5. 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). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

6. The delegate refused to grant the visa on 24 July 2018 on the basis that the applicant did not meet r.2.03AA because evidence of criminal history was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations). 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.

   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.

8. On 14 September the Tribunal wrote to the applicant requesting the applicant to provide the following information by 12 October 2018:

   ·A current Vietnam police certificate.

   ·A current Australian Federal Police certificate.

9. On 19 September 2018 the applicant provided a copy of her current Vietnam police certificate dated 30 August 2018 and current Australian Federal Police certificate dated 12 September 2018. Both documents indicate that there are no disclosable court outcomes or criminal history recorded against the applicant in Australia or Vietnam.

10. 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.

11. On the basis of the above findings, the applicant meets r.2.03AA(2).

    DECISION

12. The Tribunal remits the application for a Contributory Parent (Temporary) (Class UT) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 173 visa:

    ·Regulation 2.03AA(2).

    Russell Matheson
    Member