Phommahaxay (Migration)

[2018] AATA 1494

Phommahaxay (Migration) [2018] AATA 1494 (27 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jonathan Phommahaxay

CASE NUMBER:  1730446

DIBP REFERENCE(S):  CLF2015/62704

MEMBER:Moira Brophy

DATE:27 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·Reg. 2.03AA of Schedule 2 to the Regulations.

Statement made on 27 April 2018 at 9:47am

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) visa  – Police Clearance certificate – Provided to the Tribunal his US Department of Justice penal certificate – Completed Form 80 appears on the Departmental file – No hearing was held – Decision under review remitted 

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA Schedule 2 cls 835.222, 835.223 Schedule 4 Criterion 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 Immigration on 27 November 2017 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 October 2015. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 835 visa which are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.835.223.

3. The delegate refused to grant the visa on the basis that cl.835.223 was not met because the applicant had not provided the relevant documentation to show he was able to satisfy Public Interest Criterion (PIC) 4001. The applicant had failed to provide a police clearance certificate from the United States of America (USA).

4. No hearing was held in this case as the Tribunal was able to make a favourable determination on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for the grant of a Subclass 835 visa are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

7. Regulation 2.03AA(1) states that, in addition to the criteria prescribed by Regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or PIC 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

8. Regulation 2.03AA(2) provides that 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.

   Does the applicant meet Regulation 2.03AA?

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the delegate requested the applicant to provide police clearance certificate from each country where he had resided for a period of 12 months or more in the last 10 years. He was also asked to provide an Australian Federal Police (AFP) National Police Check and a completed Form 80- Personal Particulars for assessment including character assessment. It appears the applicant provided his police clearance certificate but he failed to provide a completed Form 80 and a police certificate from countries where he had resided for a period of 12 months or more in the last 10 years. The applicant then provided a completed Form 80 but not a police clearance certificate from USA where according to his provided Form 80 he had resided for the requisite period and as a result, the visa application was refused. Correspondence received from the agent representing indicated the applicant was having some difficulties obtaining the relevant documentation.

10. The applicant has now provided to the Tribunal his US Department of Justice penal certificate. The certificate states that there are no reportable outcomes and is less than 12 months old at the time of this decision.

11. The Tribunal is satisfied that the Minister requested a statement provided by an appropriate authority in a country where a person resides, or has resided that provides evidence about whether or not the person has a criminal history. The Tribunal is satisfied that the applicant has now provided to the Tribunal his USA certificate. A completed form 80 appears on the Departmental file. The Tribunal is satisfied that the applicant meets r.2.03AA(2) and therefore meets r.2.03AA.

12. Although the delegate found that the applicant did not satisfy cl.835.222, this finding appears to have been made on the basis that as the applicant failed to provide the USA police certificate and did not meet r.2.03AA, which was necessary for an assessment of PIC 4001. As the applicant has provided the USA police certificate, the delegate is now able to assess whether the applicant meets PIC 4001 for the purposes of cl.835.222.

13. 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.835.222 and the remaining criteria for the grant of a Subclass 835 visa.

    DECISION

14. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·Regulation 2.03AA.

    Moira Brophy
    Member