Roy (Migration)

[2020] AATA 3284

Roy (Migration) [2020] AATA 3284 (15 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zachary Roy

CASE NUMBER:  2002737

DIBP REFERENCE(S):  BCC2018/2640649

MEMBER:P. Maishman

DATE:15 May 2020

PLACE OF DECISION:  Perth

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 15 May 2020 at 1:40pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – criminal history – statement from an appropriate authority – certificate from the Royal Canadian Mounted Police – Indonesian National Police Intelligence and Security Agency – Certificates of Police Record (SKCK) for foreign nationals who do not possess a temporary/permanent stay permit card – waiver of requirement – reasonable steps undertaken – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 820.223; Schedule 4, PIC 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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 July 2018. The criteria for a Partner (Temporary) (Class UK) visa are set out in Schedule 2 to the Migration Regulations 1994 (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: r.2.03AA(1). ). In this case, cl.820.223 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in r.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 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.

5. The delegate refused to grant the visa on 7 February 2020 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide a statement from an appropriate authority about whether he has a criminal history.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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 statements by the appropriate authorities that provide evidence about whether he has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

9. The applicant gave the Tribunal a copy of the delegate’s decision record which summarises the visa application history. The delegate says the applicant gave evidence of having resided in Canada and Indonesia for more than 12 months in the last 10 years. The applicant was requested in writing on 13 November 2019 to provide statements from the appropriate authorities in Canada and Indonesia about whether he has a criminal history. The delegate says the documents were not received.

10. The Tribunal has considered the information provided in the delegates decision record and accepts the Department requested the applicant to provide statements from the appropriate authorities in Canada and Indonesia. The Department did not receive the requisite statements from the appropriate authorities. The delegate refused the application because the applicant did not meet regulation 2.03AA(2). 

11. The applicant has given the Tribunal a certificate from the Royal Canadian Mounted Police dated 28 February 2020 showing a compilation of the criminal records held by the Canadian authorities.

12. The applicant has provided statements from the appropriate authorities in Canada about whether he has a criminal history and therefore meets r.2.03AA(2)(a) in respect of the Department’s request to provide a statement from the Canadian authorities.

13. The Tribunal considered the information contained in a letter from the applicant dated 8 February 2020. The applicant said he was required to return to Indonesia for a ‘good conduct certificate’ application to be considered. An email from the applicant to the Tribunal on 2 March 2020 indicated the applicant was overseas obtaining the required information. The Tribunal subsequently received a translated copy of a letter dated 10 March 2020 and signed by the Head of the Bali Regional Police Director Intelligence and Security about the applicant’s ‘Request for issuing of Certificate of Police Record’ saying the Indonesian National Police Intelligence and Security Agency does not issue Certificates of Police Record (SKCK) for foreign nationals who, amongst other things, do not possess a temporary/permanent stay permit card and the visa applicant’s application for a certificate of police record (SKCK) cannot be issued.

14. The applicant has not provided a statement from an appropriate authority in Indonesia and therefore does not meet r.2.03AA(2)(a). The Tribunal has therefore considered whether it would not be reasonable for the applicant to provide the statement, and whether the requirement to provide it should be waived.

15. The letter from the Indonesian authorities indicates that the applicant is required to provide a letter of application from a sponsor/company; a photocopy of his passport photocopy of temporary/permanent stay permit card and or an Official Visa from an Embassy; and a police record recommendation from local (Indonesian) regional police ; passport photos and a photocopy of fingerprint formula in order to obtain a certificate of police record. It is not clear to the Tribunal that the applicant would be able to meet all these requirements. The Tribunal accepts that meeting requirements would require the applicant to travel to Indonesia. International travel is restricted for the foreseeable future all because of the Covid 19 pandemic. The applicant has taken reasonable steps to obtain a statement from the Indonesian authorities and has been unable to do so. In the circumstances it is not reasonable for the applicant to provide the statement and it is appropriate to waive the requirement in relation to the Indonesian statement.

16. The Tribunal is satisfied that it is not reasonable for the applicant to provide the requested statement from the Indonesian authority, and that it is appropriate to waive that requirement under r.2.03AA(3). The applicant therefore is not required to provide the statement under r.2.03AA(2)(a).

    Conclusion

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

    DECISION

18. 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).

    P. Maishman
    Member