Padiet (Migration)

[2024] AATA 3485

Padiet (Migration) [2024] AATA 3485 (11 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Teresa Ajak Padiet

VISA APPLICANT:  Mr Ngor Simon Ajak Padiet

REPRESENTATIVE:  Mr Galen Jaffurs

CASE NUMBER:  2423930

HOME AFFAIRS REFERENCE(S):          2015062696

MEMBER:Moira Brophy

DATE:11 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 visa:

·Regulation 2.03AA(2)

Statement made on 11 September 2024 at 4:57pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – criminal history – statement from an appropriate authority – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 117.223; Schedule 4, PIC 4001

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 Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 May 2015. The criteria for a Child (Migrant) (Class AH) 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, clause 117.223 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 14 May 2024 on the basis that the applicant did not meet reg 2.03AA because the applicant had not provided a completed Form 80.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant has provided a completed Form 80.

   Has the applicant provided a completed approved Form 80?

8. The Tribunal is satisfied from the departmental file provided that the applicant was asked on a number of occasions (22 March 2023, 21 July 2023, 15 November 2023, 22 January 2024and 25 March 2024) to provide a completed Form 80. As at the date of the delegate’s decision (14 May 2024) a completed Form 80 had not been provided.

9. On 4 August 2024 the applicant provided a completed Form 80.

10. The applicant has provided a completed approved Form 80 and therefore meets  reg 2.03AA(2)(b).

    Conclusion

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

    DECISION

12. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 visa:

    ·Regulation 2.03AA(2).

    Moira Brophy
    Member