Panglao (Migration)

[2024] AATA 462

Panglao (Migration) [2024] AATA 462 (17 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Cecelia Panglao
Miss Lexel Rose Panglao

CASE NUMBER:  1926223

HOME AFFAIRS REFERENCE(S): BCC2018/3912995 BCC20183912995

MEMBER:Edward Howard

DATE:17 January 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the review applicant meets the following criteria for a Subclass 820 (Partner) visa:

·PIC 4001 for the purposes of cl 820.223(1)(a) of Schedule 2 to the Regulations

Statement made on 17 January 2024 at 3:52pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – applicant provided a police certificate from the Philippines – applicant has no criminal record in the Philippines – decision under review remitted   

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 2.03AA, Schedule 2, cl 820.223, 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 applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) applied for the visa on 25 June 2018 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. In considering the application, the delegate was required to determine whether the review applicant satisfied cl 820.223 of Schedule 2, which required her to meet Public Interest Criterion (PIC) 4001 by assessing the review applicant against the terms of the ‘character test’. As the review applicant had spent a cumulative period of 12 months or more in the Philippines during the last 10 years (from the age of 16 years), she is required under regulation 2.03AA to provide a statement by an “appropriate authority” providing evidence about whether or not she has a criminal history in the country.

4. Despite several requests to provide this evidence, at the time of the decision by the delegate the review applicant had failed to satisfy this requirement.

5. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.223(1)(a).

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the review applicant satisfies cl 820.223(1)(a), which requires that she meet Public Interest Criterion (PIC) 4001 as required by the criteria for the grant the visa.

9. PIC 4001 requires that the review applicant be assessed against the terms of the ‘character test’, requiring the provision of a police certificate for each country in which the review applicant has lived for a cumulative period of 12 months or more over the last 10 years, since turning 16 years of age.

10. The police certificate is a statement provided by the appropriate authority from that country, providing evidence about whether or not the person has a criminal history in the country. The review applicant provided evidence that she had lived in the Philippines for the requisite time and therefore was required to provide a police certificate from the country.

11. On 9 January 2024, review applicant provided the Tribunal with a document from the National Bureau of Investigation, within the Department of Justice for the Philippines. The document confirms that the review applicant has no criminal record in the Philippines.

12. In view of this evidence, the Tribunal finds that the requirement of regulation 2.03AA is satisfied and the Tribunal therefore finds that the review applicant satisfies PIC 4001 for the purposes of cl 820.223(1)(a).

13. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 and visa.

14. The delegate refused the second-named visa applicant on the basis that the review applicant had been refused. As the Tribunal has found that the review applicant has met cl 820.223(1)(a), the appropriate course is for the Tribunal to also remit the second-named visa applicant to be reconsidered in light of the direction for the review applicant.

    DECISION

15. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the review applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·PIC 4001 for the purposes of cl 820.223(1)(a) of Schedule 2 to the Regulations

    Edward Howard
    Member