Singh (Migration)

[2020] AATA 2021

Singh (Migration) [2020] AATA 2021 (11 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Varinder Pal Singh

CASE NUMBER:  1923157

DIBP REFERENCE(S):  OSF2014063341

MEMBER:Kira Raif

DATE:11 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 143 visa:

·Regulation 2.03AA(2); and

·Cl. 143.228 of Schedule 2 to the Regulations

Statement made on 11 May 2020 at 5:47pm

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – character test – statement from an appropriate authority – assurance of support – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cls 143.224, 143.228; 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 Contributory Parent (Migrant) (Class CA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 September 2017. The criteria for a Contributory Parent (Migrant) (Class CA) 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. 143.224of 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 2 August 2019 on the basis that the applicant did not meet r.2.03AA because  the applicant failed to provide his updated police certificates and evidence that an Assurance of Support (AOS) had been accepted.

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

   Has the applicant provided a statement from an appropriate authority?

7. The primary decision record indicates that the delegate wrote to the applicant requesting him to provide updated police clearance certificates from Australian and India, as well as evidence relating to the acceptance of the AOS. The applicant had not done that within the time allowed.

8. The applicant provided to the Tribunal the police clearance certificate issued by the AFP and an Indian certificate, both of which were issued within 12 months. The applicant also provided evidence that an AOS has been accepted by Centrelink.

9. The  Tribunal finds that the applicant has provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a). The applicant also meets cl. 143.228.

   Conclusion

10. On the basis of the above findings, the applicant meets.2.03AA(2) and cl. 143.228.

    DECISION

11. The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 143 visa:

    ·Regulation 2.03AA(2);

    ·Cl. 143.228 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member