Sais Marroquin (Migration)

[2024] AATA 3143

Sais Marroquin (Migration) [2024] AATA 3143 (21 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Frida Montserrat Sais Marroquin
Mr Okan Kose

REPRESENTATIVE:  Ms Sarah Chen (MARN: 0637505)

CASE NUMBER:  2412484

HOME AFFAIRS REFERENCE(S):          BCC2024/248735

MEMBER:Sheridan Aster

DATE:21 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets reg 2.03AA(2) of the Migration Regulations 1994 (Cth).

Statement made on 21 August 2024 at 1:06pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – criminal history statement – statement from appropriate authority in home country provided to tribunal – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 2, cl 189.211(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 to refuse to grant the applicants Skilled Independent (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 18 January 2024. The criteria for a Skilled Independent (Permanent) 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 189.211(1) of Schedule 2 of the Regulations requires the applicant to meet 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.

5. The delegate refused to grant the visas on 14 May 2024 on the basis that the applicant did not meet reg 2.03AA because the applicant did not provide the requested police check from the relevant authority of Mexico.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant provided the Tribunal with a certificate issued by the Secretariat of Security and Social Rehabilitation Mexico on 24 January 2024. The applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

8. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in reg 2.03AA(2)(b) does not apply.

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

10. The application of the second named applicant will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

11. The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets reg 2.03AA(2) of the Migration Regulations 1994 (Cth).

    Sheridan Aster
    Member