Oalikkal Pappu (Migration)

[2022] AATA 1406

Oalikkal Pappu (Migration) [2022] AATA 1406 (22 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Santhamma Oalikkal Pappu

CASE NUMBER:  2201721

HOME AFFAIRS REFERENCE(S):          BCC2020/2715082

MEMBER:Nicole Burns

DATE:22 April 2022

PLACE OF DECISION:  Melbourne

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 22 April 2022 at 5:02pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – character test – evidence of criminal history – Australian National Police Certificate provided upon review – decision under review remitted    

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 600.213; Schedule 4, Public Interest Criteria 4001; r 2.03AA

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 Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 November 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 8 February 2022 on the basis that the applicant did not meet reg 2.03AA because she did not provide a statement from an appropriate authority in Australia that provides evidence about whether or not she has a criminal history, despite being requested in writing to do so several times. 

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

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. According to information contained in the delegate’s decision record, on 18 June 2021, 16 August 2021, 17 November 2021 and 10 January 2022 the Department requested in writing that the applicant provide a statement by an appropriate authority in Australia that provides evidence about whether or not she has a criminal history.  However by the time of the delegate’s decision she had failed to provide this statement.

10. On review the applicant submitted to the Tribunal a copy of an Australian National Police certificate which certifies that there are no disclosable court outcomes recorded against her name (and a previous name) as of 1 March 2022.

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

    Conclusion

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

    DECISION

13. 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).

    Nicole Burns
    Member