NGUYEN (Migration)

[2018] AATA 4546

NGUYEN (Migration) [2018] AATA 4546 (12 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms GIANG HUONG NGUYEN
Mr HIEU TIEN NGUYEN

CASE NUMBER:  1816934

DIBP REFERENCE(S):  BCC2017/383609

MEMBER:P. Maishman

DATE:12 September 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first and second named applicant meets the following criteria for a Subclass 820 visa:

·Regulation 2.03AA(2)(a)

Statement made on 12 September 2018 at 6:12pm

CATCHWORDS
MIGRATION – Partner (Temporary)(Class UK) – Subclass 820 (Spouse) – police check – Australian Federal Police National Police Clearance – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 2.03AA Schedule 2 cls 820.223, 820.321

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 applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant applied for the visa on 30 January 2017 on the basis of her relationship with the sponsor. The second applicant is the dependent son of the first applicant. The delegate refused to grant the visas on 24 May 2018.

3. The delegate refused to grant the visa on the basis that the first named applicant did not satisfy cl.820.223 because the applicant failed to provide police certificates or other statement provided by an appropriate Australian authority about whether or not she has a criminal history. The delegate refused the second named applicant’s visa application because he was not the dependent a member of the family unit of a person who had satisfied the primary criteria and so did not satisfy cl.820.321.

4. The delegate made the decision on the basis that evidence of criminal history was not provided as required to satisfy r.2.03AA for the grant of the visa under the Migration Regulations 1994 (the Regulations).

5. There was no hearing. Following the provision of the evidence stated below the Tribunal determined that it should decide the review in the applicant’s favour on the basis of the material before it in accordance with s.360 of the Act.

   RELEVANT LAW

6. At the time of application, Class UK contained two subclasses: Subclass 820 (Spouse) and 826 (Interdependency). The applicant has made claims only for the Subclass 820 visa and does not claim to be in an interdependent relationship as required by Subclass 826. The criteria for the grant of a Subclass 820 visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

7. In this case, cl.820.223 of Schedule 2 of the Regulations requires the applicant to meet Public Interest Criteria (PIC) 4001. Regulation 2.03AA applies where a person is required to satisfy PIC 4001 or 4002: r.2.03AA(1).

8. 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).

   DOES THE APPLICANT MEET REGULATION 2.03AA(2)(a)?

9. Ms Nguyen applied to the Tribunal for a review on 11 June 2018. She provided a copy of the delegate’s decision to the Tribunal.

10. The delegate’s decision indicates that a request for information, including police certificates, was made by the Department on 5 December 2017. An extension was granted for the provision of the outstanding police certificates on 3 March 2018. On 2 April 2018 the delegate says that the Australian Federal Police certificates that were submitted did not meet the legislative requirements and were a State Police check.

11. The Department’s file contains a copy of a National Police Certificate in the name of the second applicant dated 7 December 2017 (Folio 150).

12. On 13 August 2018 the Tribunal received an Australian Federal Police National Police Clearance dated 7 December 2017 in the name of the first applicant and an Australian Federal Police National Police Clearance in the name of the sponsor.

13. The Tribunal notes there is no record on the Department’s files of these certificates being provided earlier than 13 August 2018.

    CONCLUSION

14. The delegate found that the first named applicant did not satisfy cl.820.223 and consequently the second named applicant did not satisfy cl.820.321, however these findings appear to have been made on the basis that the first named applicant failed to meet r.2.03AA(2)(a) because she did not provide the correct police certificates that were necessary for an assessment of PIC 4001.

15. As the first named applicant has provided the relevant police certificates, the delegate is now able to assess whether the first named applicant meets PIC 4001 for the purposes of cl.820.223 and the remaining criteria for the grant of a Partner visa.

16. The Tribunal considers the appropriate course of action is to remit the primary application to the Minister to undertake consideration of whether the applicant meets PIC 4001 for the purposes of cl.820.223 and the remaining criteria for the grant of a Partner visa.

17. The Tribunal considers that it follows that the second application is remitted to the Minister to undertake consideration of whether the second applicant meets the secondary criteria in cl.820.321.

    DECISION

18. The Tribunal remits the application for reconsideration, with the direction that the first and second named applicant meets the following criteria for a Subclass 820 visa:

    ·Regulation 2.03AA(2)(a)

    P. Maishman
    Member