Pickering (Migration)

[2021] AATA 2858

Pickering (Migration) [2021] AATA 2858 (2 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alan John Pickering

CASE NUMBER:  2107164

HOME AFFAIRS REFERENCE(S):          BCC2020/1733108

MEMBER:Tania Flood

DATE:2 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·Public Interest Criterion 4001 and Regulation 2.03AA(2) for the purposes of cl.600.213(1) of Schedule 2 to the Regulations.

Statement made on 02 August 2021 at 1:24pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – character test – criminal history checks from Australia, home country and third country provided to tribunal – no disclosable outcomes – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(2), Schedule 2, cl 600.213(1), 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 Home Affairs on 12 May 2021 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 13 June 2020. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.213(1), which requires the visa applicant to satisfy public interest criteria 4001, 4002, 4003, 4005, 4013, 4014, 4020 and 4021. The visa applicant must also satisfy Regulation 2.03AA which requires that if requested, the applicant provide 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.213(1) because he did not satisfy public interest criteria (PIC) 4001.

5. The Tribunal did not consider a hearing to be necessary as it was able to remit the matter on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The first issue in this case is whether PIC 4001 is met, which requires the Minister (or the Tribunal standing in the Minister’s shoes) to be satisfied that the visa applicant passes the character test; or the Minister is satisfied that there is nothing to indicate that he would fail to satisfy the Minister that he passes the character test, or the Minister has decided not to refuse to grant a visa to him despite reasonably suspecting that he does not pass the character test; or the Minister has decided not to refuse to grant a visa to him despite not being satisfied that he passes the character test.  The second issue is whether the applicant meets Regulation 2.03AA which requires the applicant to have provided appropriate police clearance documents.

8. On 16 December 2020 and 9 March 2021, the applicant was requested to provide a statement by an appropriate authority in Australia, Singapore and the United Kingdom (UK) that provided evidence about whether or not he has a criminal history.  The delegate had not received those statements by the time the decision under review was made.  The delegate found that he therefore did not satisfy PIC 4001.

9. The applicant has now provided a completed Form 80 (personal particulars for assessment including character assessment).  He also provided a UK Police Certificate dated 9 June 2021 with a recording of “No Trace”.  He also provided a Singapore Police Force Certificate of Clearance dated 23 June 2021 which states he has no criminal record in Singapore from 1 May 1990 to 14 March 2020.  Further, he provided a National Police Certificate from the Criminal Records section of the Australian Federal Police dated 31 December 2020 which states he did not have any disclosable court outcomes recorded against his name as at 31 December 2020.

10. On the evidence before it the Tribunal finds that the applicant satisfies the character test and the requirements in PIC 4001 are met for the purposes of cl.600.213(1).

11. 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 such documents on 16 December 2020 and 9 March 2021.  The applicant has now provided those documents from appropriate authorities as referred to earlier.  The Tribunal is therefore satisfied that the applicant meets Regulation 2.03AA(a).

    DECISION

12. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    - Public Interest Criterion 4001 and Regulation 2.03AA(2) for the purposes of cl.600.213(1) of Schedule 2 to the Regulations.

    Tania Flood
    Member