Pham (Migration)

[2023] AATA 2970

Pham (Migration) [2023] AATA 2970 (6 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr The Long Pham

REPRESENTATIVE:  Ms Janly Quach

CASE NUMBER:  2302727

HOME AFFAIRS REFERENCE(S):          BCC2019/2792156

MEMBER:Meena Sripathy

DATE:6 September 2023

PLACE OF DECISION:  Sydney

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

·Regulation 2.03AA(2)

Statement made on 06 September 2023 at 9:28am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal history – updated Digital National Police Certificate provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.223; Schedule 4, Public Interest Criterion 4001; r 2.03AA

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 Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 May 2019. The criteria for a Partner (Temporary) (Class UK) 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.820.223 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 among other criteria. 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 21 February 2023 on the basis that the applicant did not meet reg 2.03AA because no response was provided to requests to provide an updated Australian police certificate sent on 1 August 2022 and 2 November 2022.

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 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. On 1 August 2022 the Department sent the applicant a request for an updated police certificate from Australia. A further request was sent on 2 November 2022. No response was provided and the delegate refused the application on that basis.

9. On 8 June 2023 and again on 14 June 2023 an officer of the Tribunal invited the applicant to provide the requested information, being an updated Australian police certificate.

10. On 25 July 2023 the Tribunal received a Digital National Police Certificate for the applicant dated 25 July 2023.

11. The applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

    Conclusion

12. There is no evidence that the delegate made a request for the applicant to provide a statement from an approved authority, therefore the requirement in reg 2.03AA(2)(b) does not apply.

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

    DECISION

14. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·Regulation 2.03AA(2).

    Meena Sripathy
    Member