Oyhanart (Migration)

[2021] AATA 1809

Oyhanart (Migration) [2021] AATA 1809 (25 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Carolina Miren Oyhanart

CASE NUMBER:  2103512

HOME AFFAIRS REFERENCE(S):          BCC2020/1535381

MEMBER:Susan Trotter

DATE:25 April 2021

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:

·2.03AA

Statement made on 25 April 2021 at 1:26pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – applicant’s criminal history – police certificate from Argentina and Australia 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 Criterion (PIC) 4001; r 2.03

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 (the Act).

2. The applicant applied for the visa on 12 May 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(1) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. 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 3 March 2021 on the basis that the applicant did not meet reg 2.03AA because the applicant had not provided a statement from an appropriate authority in Australia and other countries as requested.

6. The delegate refused to grant the visa on 11 March 2021 on the basis that the applicant did not meet reg 2.03AA because she had not provided, as requested, a police certificate or other statement from an appropriate authority from countries that she has lived in for a cumulative period of 12 months or more, over the last 10 years, since turning 16 years of age. In particular the applicant had been requested to provide an ‘Australian Federal Police National Police Check’ and a ‘Police certificate (also called a penal clearance certificate) from every country you lived in for at least 12 months cumulatively in the past 10 years.

7. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 19 March 2021.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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?

11. One of the requirements for the grant of a Subclass 600 visa is that the applicant satisfies cl.600.213 of Schedule 2 to the Regulations at the time of decision. Clause 600.213 provides as follows:

    600.213

    (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013, 4014, 4020 and 4021.

12. PIC 4001 provides as follows:

    [4001] Either:

    (a) the person satisfies the Minister that the person passes the character test; or

    (b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

    (c) the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

    (d) the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

13. Where a person is required to satisfy PIC 4001 for the grant of a visa, additional criteria are prescribed under r.2.03AA that must be met for the grant of visa. Regulation 2.03AA provides as follows:

    Reg 2.03AA Criteria applicable to character tests and security assessments

    (1)  In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

    (2)  If the Minister has requested the following documents or information, the person has provided the documents or information:

    (a)      a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

    (b)      a completed approved form 80.

    Note: For paragraph (a), an example of an appropriate authority is a police force.

    (3)  The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.

14. The delegate has restricted their consideration of the Subclass 600 visa criteria to r.2.03AA. For the purpose of this review, consistent with paragraph 8.2 of the Tribunal President’s Direction – Conducting Migration and Refugee Reviews (1 August 2018), the Tribunal will therefore restrict its consideration to the criterion canvassed by the delegate.

15. The delegate’s decision was made because the applicant had not, as requested, provided a police certificate or other statement from an appropriate authority from countries in which she has lived for a cumulative period of 12 months or more, over the last 10 years, since turning 16 years of age. However, the applicant has subsequently provided the Tribunal with a copy of a National Police Certificate issued by the Australian Federal Police dated 1 October 2020 stating “there are no disclosable court outcomes recorded against” the applicant. The applicant has also provided the Tribunal with a copy of a Clearance of Criminal Record Certificate dated 9 March 2021 from Argentina stating that the applicant “does not register a criminal record for this agency to report”.

16. As the applicant has now provided a statements from appropriate authorities in Australia and Argentina in relation to whether or not she has a criminal history, r.2.03AA(2)(a) is now met. Further, there is no evidence that the applicant has been asked to provide a completed approved form 80 (r.2.03AA(2)(b)).

17. The Tribunal is therefore satisfied that the applicant now meets r.2.03AA.

18. Although the delegate found that the applicant did not satisfy cl.600.213, this finding appears to have been made on the basis that the applicant failed to provide statements from appropriate authorities as requested and did not meet r.2.03AA(2)(a), which was necessary for an assessment of PIC 4001. As the applicant has now provided the statements, the delegate is now able to assess whether the applicant meets PIC 4001 for the purposes of cl.600.213.

19. The Tribunal considers the appropriate course of action is to remit the application to the Minister to undertake consideration of whether the applicant meets PIC 4001 for the purposes of cl.600.213 and the remaining criteria for the grant of a Subclass 600 visa.

    DECISION

20. 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:

    ·2.03AA

    Susan Trotter
    Member