Shabnab (Migration)

[2020] AATA 1051

Shabnab (Migration) [2020] AATA 1051 (31 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ziaren Shabnab

CASE NUMBER:  1923240

DIBP REFERENCE(S):  BCC2016/1463705 PNJ

MEMBER:Meena Sripathy

DATE:31 March 2020

PLACE OF DECISION:  Sydney

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 31 March 2020 at 10:44am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – character test – statement from an appropriate authority  – Fiji Police Clearance – signed Form 80 – Complete Disclosure AFP Police Check – deadline to s359(2) invitation missed – not entitled to appear before the Tribunal – 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 13 April 2016. 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, 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 29 July 2019 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide a police certificate from Fiji and Australia as requested nor any claims or evidence as to why it was not reasonable for her to do so. Therefore the delegate found she did not meet 2.03AA(2)(a) and 2.03AA(3) does not apply.

6. On 25 March 2020 the applicant provided the Tribunal copies of a Fiji Police Clearance, signed Form 80 and receipt for an AFP Police Certificate, following a request by the Tribunal for this information.  On 31 March 2020 a Complete Disclosure AFP Police Check was received.  The Tribunal notes its request, issued under s359(2) required a response by 24 March 2020.  The applicant was advised of the consequences of non response by this date, including loss of entitlement to a hearing. Despite this, and a reminder phone call from a Tribunal officer to the applicant’s registered migration agent Ms Chandrani Buddhipala, the information was not provided until 25 March 2020, one day after the deadline.

7. The applicant’s registered migration agent’s apparent disregard of the time frame for response to this invitation, which had the effect of a loss of hearing entitlement for the applicant is of concern to the Tribunal.  This is especially so in circumstances where the agent could simply have requested an extension of time to provide the information to protect her client’s rights.   In any event, fortunately in this case, 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 and a completed Form 80.

   Has the applicant provided a completed approved Form 80 and a statement from an appropriate authority?

10. On 10 March 2020 the Tribunal invited the applicant to provide the information she was previously requested to provide by the delegate.  Specifically, the applicant was invited to provide:

    • Police certificate from Fiji, as requested previously by the Department. The name

    on the police certificate must match the name in your passport and must include

    any other names or aliases that you are or have been known by.

    • If unable to provide a police certificate, it is in your best interest to

    demonstrate, with documentary evidence where possible, your attempts to obtain a

    police certificate.

    • A ‘Complete Disclosure’ Australian Federal Police (AFP) National Police Certificate

    and a completed Form 80, as requested previously by the Department.

11. On 25 March 2020 the applicant provided to the Tribunal a copy of a Police Clearance Certificate dated 11 March 2020 signed by Margaret Marshall Superintendent of Police/ Deputy Director of Forensic Science Services and a signed and completed Form 80.  She also provided an AFP payment receipt for a National Police Check.  On 31 March 2020 she provided   a ‘Complete Disclosure’ Australian Federal Police (AFP) National Police Certificate.

12. On the basis of the evidence now before it, the Tribunal finds the applicant has provided a completed approved Form 80 and a statement from an appropriate authority and therefore meets r.2.03AA(2)(a) and r.2.03AA(2)(b).

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

    DECISION

14. 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).

    Meena Sripathy
    Member