Nonthasri (Migration)

[2023] AATA 507

Nonthasri (Migration) [2023] AATA 507 (5 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sukanya Nonthasri

CASE NUMBER:  2103053

HOME AFFAIRS REFERENCE(S):          BCC2020/1408975

MEMBER:K. Chapman

DATE:5 January 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

·Regulation 2.03AA(2).

Statement made on 05 January 2023 at 9:29am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – applicant provided police clearances from the Australian Federal Police and from the Thai authorities – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 359

Migration Regulations 1994, r 2.03AA(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 Home Affairs on 25 February 2021, to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant applied for the visa on 21 April 2020. The criteria for a Visitor (Class FA) 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, cl 600.213 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. 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 the basis that the applicant did not meet reg 2.03AA(2)(a) because she failed to provide police clearances from the Australian Federal Police and from the Thai authorities, despite being requested to do so. On 11 March 2021, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with her application for review.

6. On 26 September 2022, the Tribunal wrote to the applicant, pursuant to s.359(2) of the Act, inviting her to provide, inter alia, information to support her claims to satisfying reg 2.03AA. On 8 October 2022, the applicant submitted a clearance from the Australian Federal Police. That clearance is dated 7 October 2022. However, the applicant provided no persuasive information regarding the requirement to provide a Thai police clearance. Therefore, on 1 November 2022, the Tribunal invited the applicant to attend a review hearing scheduled for 14 December 2022. During the evening of 13 December 2022, the applicant submitted a Thai police clearance of same date.

7. The applicant appeared before the Tribunal in person on 14 December 2022 to give evidence and present arguments. She was accompanied by her sister, Ms Alish Apaphattanakul, who also gave evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages, with the applicant confirming she understood the interpreting service.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant has provided a statement by an appropriate authority that provides evidence to ascertain if she has a criminal history or not. Specifically, the Tribunal must determine whether she has provided a police clearance certificate from the Australian Federal Police and from the Thai authorities.

   Has the applicant provided a statement from an appropriate authority?

10. The delegate requested the applicant to provide Thai and Australian police clearance certificates on numerous occasions in connection with her visa application. At the time of the delegate’s visa refusal decision, the applicant failed to provide any such clearances. The Tribunal also made several requests of the applicant to provide such clearances prior to the review hearing.

11. In due course, the applicant provided police clearances from the Australian Federal Police dated 7 October 2022 and from the Thai authorities dated 13 December 2022. At hearing, the applicant and her sister explained they had difficulty obtaining professional migration advice, and the police clearances, due to the impact of the COVID-19 pandemic in Australia around the time of application. They also advised that only shortly before the review hearing did they manage to obtain professional migration advice that assisted them to obtain the Thai police clearance.

12. As the applicant has now provided a statement from an appropriate authority, with respect to Australia and Thailand, she therefore meets the requirements of r.2.03AA(2)(a).

    Conclusion

13. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

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

    DECISION

15. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

    ·Regulation 2.03AA(2).

    K. Chapman
    Member