Pongsumran (Migration)

[2023] AATA 3664

Pongsumran (Migration) [2023] AATA 3664 (1 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Malivan Pongsumran

VISA APPLICANTS:  Mr Kailerd Kantajan
Mr Chayanut Kantajan
Mr Chayakorn Kantajan

REPRESENTATIVE:  Mr Winai Jiamsakul (MARN: 0321571)

CASE NUMBER:  2307705

HOME AFFAIRS REFERENCE(S):          BCC2022/5381694

MEMBER:Brendan Darcy

DATE:1 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 visa:

·Regulation 2.03AA(2)

Statement made on 01 November 2023 at 12:34pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – criminal history statement – statement from home country provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 2, cl 309.321, 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 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 13 December 2022. The criteria for a Partner (Provisional) (Class UF) 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, 309.225 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The first named 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 secondary applicants were refused on the based that the first named applicant did not satisfy the primary criteria pursuant to cl 309.321.

6. The delegate refused to grant the visas on 30 May 2023 on the basis that the first named applicant did not meet reg 2.03AA because no statement was provided by the appropriate authorities in the countries where the first named applicant resides, or has resided, that provides evidence about whether or not the person has a criminal history. 

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 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?

9. After assessing the visa application, a delegate of the Minister sent the applicants a letter by email on 15 February 2023 requesting further information, which included a request for a police clearance certificate from Thailand pertaining to the first named applicant. The applicants did not respond in a timely manner, including requesting an extension of time to provide the relevant evidence.

10. On 1 April 2023, another request for information was forwarded to the parties, and they were provided with 28 days to respond.

11. The delegate proceeded to refuse the visa on 30 May 2023.

12. An application to have the delegate’s refusal decision reviewed by the Tribunal was lodged on 2 June 2023.

13. On 19 September 2023, the Tribunal received a document dated 18 September 2023 pertaining to the applicant. The document was issued by the Special Branch of the Royal Thai Police.

14. This document or statement is suitable for the purposes of subregulation 2.03AA(2)(a).

15. Based on this information, no scheduled hearing was required to reach a favourable decision in this matter.

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

    Conclusion

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

    DECISION

18. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 visa:

    ·Regulation 2.03AA(2).

    Brendan Darcy
    Member