Santiago (Migration)

[2022] AATA 4954

Santiago (Migration) [2022] AATA 4954 (26 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Marcela Santiago

REPRESENTATIVE:  Mrs Ellen Veza

CASE NUMBER:  2204364

HOME AFFAIRS REFERENCE(S):          BCC2020/1910280

MEMBER:Moira Brophy

DATE:26 July 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(2).

Statement made on 26 July 2022 at 9:31am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – criminal history – statement from an appropriate authority – Digital Police Certificate issued by the Australian Federal Police – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 600.213; 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 Home Affairs to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 July 2020. The criteria for a Visitor (Class FA) 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, 600.213 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. 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 16 March 2022 on the basis that the applicant did not meet reg 2.03AA because she had failed to provide a police clearance certificate from the Australian Federal Police.

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. The Tribunal is satisfied the applicant was requested by the department to provide a statement from the relevant authority in Australia on 4 October 2020 and on 17 May 2022 by the Tribunal. As at the date of the decision of the delegate that documentation had not been provided.

9. On 1 June 2022 the applicant provided to the Tribunal a Digital Police Certificate issued by the Australian Federal Police, dated 1 June 2022. That statement was to the effect that the applicant had no disclosable Court outcomes recorded as at the date of the certificate.

10. Accordingly the Tribunal finds the applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

    Conclusion

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

    decision

12. 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(2).

    Moira Brophy
    Member