Singh (Migration)

[2024] AATA 471

Singh (Migration) [2024] AATA 471 (8 January 2024)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Karuna Singh

REPRESENTATIVE:  Mr Maheep Singh Virk (MARN: 2117686)

CASE NUMBER:  2316464

HOME AFFAIRS REFERENCE(S):          BCC2019/2409426

MEMBER:Brendan Darcy

DATE:8 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:

·Regulation 2.03AA(2)

Statement made on 08 January 2024 at 9:02am.

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 – Tribunal received a digital copy of an Indian Police Clearance Certificate in relation to the visa applicant – failure to satisfy PIC 4020(2A) – Public Interest Criteria (PIC) 4001 met – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA

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 Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 6 May 2019. The criteria for a Partner (Migrant) (Class BC) 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, clause 100.222 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001C. 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 4 October 2023 on the basis that the applicant did not meet reg 2.03AA because the applicant had not provided a police clearance certificate or statement provided by an appropriate authority in the Republic of India (India).

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. After assessing the visa application, a delegate on behalf of the Minister sent the applicant an email on 2 June 2023, requesting further information, which included a request for an updated police clearance certificate from India.

9. On 7 July 2023 and 21 August 2023, the Department sent further request for an updated police clearance certificate from India.

10. After a notable period of time and no response received to date, the delegate proceeded to refuse the visa on 4 October 2023 on the basis of a lack of compliance with regulation 2.03AA(2)(a) due to the lack of police clearance certificate from India.

11. The applicant validly applied to have the refusal decision reviewed by the Tribunal on 13 October 2023.

12. On 26 October 2023, the Tribunal received a digital copy of an Indian Police Clearance Certificate in relation to the visa applicant. It is dated 23 October 2023.

13. With no reasons to the contrary, the Tribunal is satisfied that the applicant has provided statements from the appropriate authorities, as requested, and therefore meets reg 2.03AA(2)(a).

14. Based on this information, no scheduled hearing was required to reach a favourable decision in this matter.

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

    DECISION

16. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:

    ·     Regulation 2.03AA(2)

    Brendan Darcy
    Member