Olivia Paparang (Migration)

[2022] AATA 1418

Olivia Paparang (Migration) [2022] AATA 1418 (16 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Olivia Paparang

CASE NUMBER:  2202300

HOME AFFAIRS REFERENCE(S):          BCC2021/1511180

MEMBER:Nicole Burns

DATE:16 May 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 16 May 2022 at 12:12pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – criminal history statement not provided to department – certificates from home country and Australia provided to tribunal – no disclosable court outcomes – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 2, cl 600.213, Schedule 4, criteria 4001, 4002

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 2 August 2021. 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 11 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 that provides evidence about whether or not she has a criminal history, despite being requested in writing to do so. 

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

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. 

   Has the applicant provided a statement from an appropriate authority?

8. According to information contained in the delegate’s decision record, on 23 September 2021 and 5 January 2022 the delegate requested in writing that the applicant provide a statement by an appropriate authority 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 these statements.

9. On review the applicant submitted to the Tribunal a copy of an Indonesian police certificate (in Bahasa Indonesia and English) issued in Denpasar on 13 May 2022.  It certifies that the applicant is not ‘involved in any criminal cases’ during her stay in Indonesia from October 21, 1983 to May 13, 2022.      

10. The applicant also submitted a copy of an Australian National Police certificate which certifies that there are no disclosable court outcomes recorded against her name as of 10 March 2022.

11. The applicant has provided a statement from an appropriate authority (in Indonesia and 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