Peang (Migration)

[2021] AATA 4003

Peang (Migration) [2021] AATA 4003 (28 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sythol Peang

CASE NUMBER:  2111034

HOME AFFAIRS REFERENCE(S):          BCC2020/2686443

MEMBER:Luke Hardy

DATE:28 September 2021

PLACE OF DECISION:  Sydney

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:

· Public Interest Criterion and Regulation 2.03AA(2) for the purposes of cl 600.213 of Schedule 2 of the Regulations.

Statement made on 28 September 2021 at 1:17pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Australian Federal Police National Police Certificate provided – certificate from Cambodian Ministry of Justice provided – no criminal history in Cambodia ––decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 501

Migration Regulations 1994, r 2.03AA(2), Schedule 2, cls 600.213, 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 Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 22 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(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 13 August 2021 on the basis that the applicant did not meet reg 2.03AA because she did not submit, on request, statements by appropriate authorities providing evidence about whether or not she had a criminal history.

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 statements by appropriate authorities that provide evidence about whether or not she has a criminal history.

8. PIC 4001 is set out in Schedule 4 to the Regulations. It provides that either:

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

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

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

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

9. As noted, the delegate was not satisfied that the applicant met PIC 4001 as police clearance documents had not been provided, despite requests on a number of occasions.

10. On 8 September 2021, the applicant provided to the Tribunal a 31 August 2021 certificate from the Cambodian Ministry of Justice, along with an accredited English translation, disclosing that she had no criminal history in Cambodia.

11. On the same date, the applicant provided to the Tribunal an Australian Federal Police National Police Certificate dated 25 January 2021 certifying that there were no disclosable court outcomes in relation to her.

12. The Tribunal is satisfied on the basis of these certificates that the applicant meets PIC 4001(b) in that there is evidently nothing to indicate that she would fail to satisfy the Minister that she passes the character test set out in s 501(6) of the Act. These police clearance certificates indicate that there is no adverse information about the applicant which would result in her not meeting any of the categories set out in s 501(6).

13. Regulation 2.03AA requires that where the Minister has requested certain documents or information from an appropriate authority where the applicant has resided, the person has provided the documents or information. The Department requested that the applicant provide police clearance documents on a number of occasions. The applicant has now provided those documents from the respective appropriate authorities in Cambodia and Australia, as referred to earlier. The Tribunal is therefore satisfied that the applicant meets Regulation 2.03AA(a).

14. Since the applicant has provided statement from appropriate authorities and therefore meets reg 2.03AA(2)(a), it follows that she meets reg 2.03AA(2).

    DECISION

15. 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:

    · Public Interest Criterion and Regulation 2.03AA(2) for the purposes of cl 600.213 of Schedule 2 of the Regulations.

    Luke Hardy
    Member