Rajni Devi (Migration)

[2022] AATA 3439

Rajni Devi (Migration) [2022] AATA 3439 (27 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rajni DEVI

REPRESENTATIVE:  Mr Harpalyad Teona (MARN: 1571524)

CASE NUMBER:  2113000

HOME AFFAIRS REFERENCE(S):          BCC2020/1741839

MEMBER:Mireya Hyland

DATE:27 September 2022

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:

·Regulation 2.03AA

Statement made on 27 September 2022 at 3:42pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – evidence of criminal history – Indian Police Clearance Certificate and Australian Federal Police National Police Certificate provided upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.213; Schedule 4, Public Interest Criteria 4001; r 2.03AA

statement of decision and reasons

application for review

1. This is an application for review of a decision made on 9 September 2021 by a delegate of the Minister for Home Affairs to refuse to grant the applicant, Rajni Devi, a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958.

2. Ms Devi applied for the visa on 15 June 2020. The criteria for a Visitor (Class FA) Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations. Regulation 2.03AA applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002 in Schedule 4 to the Regulations: r.2.03AA(1). In this case, cl.600.213(1) of the Regulations requires Ms Devi to meet PIC4001 and PIC4002. She is, therefore, required to satisfy the criterion in r.2.03AA of the Regulations.

3. Regulation 2.03AA(2)(a) requires that, if requested, the applicant has provided 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. Regulation 2.03AA(2)(b) requires the applicant to provide a completed approved Form 80 if requested. The Tribunal may waive the requirement in r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

4. The delegate refused to grant the visa on the basis that Ms Devi did not meet r.2.03AA because the Department for Home Affairs (the Department) requested that she provide a statement from a relevant authority in India and Australia that provides evidence about whether she has a criminal history and Ms Devi did not provide those statements.

5. The issue in this case is whether Ms Devi has provided a statement from a relevant authority in India and Australia with evidence about any criminal history. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   consideration of claims and evidence

6. On 8 March 2022, Ms Devi provided a police clearance certificate from the Consulate General of India in Melbourne, Victoria. On 9 September 2022, she provided a National Police Certificate from the Australian Federal Police.

7. Ms Devi has provided a statement from an appropriate Indian and Australian authority with evidence about whether or not she has a criminal history. There is no evidence that she has resided in any other country. Therefore, Ms Devi meets r.2.03AA(2)(a). There is no evidence that the Department made a request for Ms Devi to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply. On the basis of these findings, Ms Devi meets r.2.03AA.

   decision

8. 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:

   ·Regulation 2.03AA.

   Mireya Hyland
   Member