Ribeiro Da Silva (Migration)

[2023] AATA 3271

Ribeiro Da Silva (Migration) [2023] AATA 3271 (29 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Giseilia Ribeiro Da Silva

CASE NUMBER:  2213614

HOME AFFAIRS REFERENCE(S):          BCC2018/3544402

MEMBER:Jennifer Cripps Watts

DATE:29 September 2023

PLACE OF DECISION:  Canberra

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 29 September 2023 at 12:05pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal history – residence periods in Mexico and Venezuela over 10 years ago at time of decision – decision under review remitted

LEGISLATION

Migration Act 1958, ss 56, 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 18 September 2018. 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, at the time of decision, to meet Public Interest Criteria (‘PIC’) 4001. 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 4 September 2022 on the basis that the applicant did not meet reg 2.03AA because they did not provide a statement from a relevant authority in a country where they had resided in the previous 10 years for 12 months (cumulatively or consecutively) or more, as was requested by the Minister.

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. In the online visa application lodged on 18 September 2018, relevantly, the following question and answers are recorded:

   Question:‘Have any of the applicants lived in a country for more than 12 months cumulatively in the past 10 years?’

   Answer:‘Yes’

9. The applicant then went on (at page 17 of the online visa application) to include that she had lived in the following countries:

   a.Venezuela                  from 5 January 2009 to 31 July 2013

   b.Brazil  7 January 2018 to 4 February 2018; and

   1 August 2013 to 9 September 2016  

10. The visa was refused because the applicant, at the time the decision was made on 4 September 2022, had not provided the requested police clearance certificates.

11. The applicant has provided the Tribunal letters from:

    a.Paulo André Moraes de Lima, Deputy Consul, Consular Section of the Embassy of Brazil in Mexico, signed and dated 23 September 2023, stating that the applicant lived in Mexico from January 2006 to July 2008 and during the whole of the period worked as a domestic employee for the Brazilian diplomat Clarissa Souza Della Nina, accredited to Mexican as an attachée of the Embassy of Brazil in Mexico; and

    b.Clarissa Souza Della Nina, Minister Counsellor to the Brazilian Delegation to ICAO, signed and dated 21 September 2023, which includes that the applicant lived with her, in house in Mexico City from January 2006 to June 2008, and in her house in Caracas Venezuela from 2009 to 2013, while she was posted as a Brazilian career diplomat.

12. On the evidence before the Tribunal, which is accepted as factually accurate, the applicant lived in Mexico from January 2006 to July 2008; and in Venezuela from 5 January 2009 to 31 July 2013.

13. To meet the requirements of cl 820.223, the applicant must satisfy the Minister that they passes the character test, PIC 4001.  Where an applicant is required to satisfy PIC 4001, and the Minister has requested a statement (however described) be provided by an appropriate authority in a country where the person resides, or has resided, the applicant must provide the statement.  However, the requirement may be waived if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.

14. In a letter sent under s 56 of the Act on 6 January 2021, the Department requested that the applicant provide additional information. Among other things, it was requested that the applicant provide, for herself:

    An Australian Federal Police (AFP) clearance National Police Check; and

    Police clearance certificates

15. In the s 56 letter, ‘Request Detail’ was provided for each of the above.  The applicant has provided the AFP clearance, which is not a matter that is in dispute.  In relation to the ‘Police clearance certificates’, they were described as (with reference to the wording of PIC 4001’ as follows:

    ‘You must provide police certificate(s) from each country where you have lived for a total of 12 months or more in the last 10 years as evidence that you satisfy the character requirements. These 12 months are calculated cumulatively and need not have been consecutive.’

16. For reasons that are not quite clear, it was in response to this request for police clearance certificates that the applicant thought she needed to provide a police clearance from Mexico.  On the evidence, for the reasons given earlier in this decision, the applicant had not lived in Mexico since July 2008, which was not ‘in the last 10 years’.  It was suggested at the Tribunal hearing by the applicant that it was confusion on her part, from that time on, her correspondence included that she was trying to obtain a Mexican police clearance, notwithstanding that she had not lived.

17. The requirements of cl 820.223 must be satisfied at the time of decision.

18. At the time of this decision, 29 September 2023, the Tribunal is satisfied that the applicant has not lived in Venezuela or Mexico and that police certificates are not required to be provided for either country, as she has not lived in either country for 12 months in the last 10 years.

19. The applicant has provided a police clearance certificates from Brazil and Australia.

    Conclusion

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

    DECISION

21. 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).

    Jennifer Cripps Watts
    Senior Member