Stroop (Migration)

[2020] AATA 2866

Stroop (Migration) [2020] AATA 2866 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Helen Ramirez Stroop

CASE NUMBER:  1936581

HOME AFFAIRS REFERENCE(S):          BCC2015/2949506

MEMBER:Joseph Francis

DATE:27 May 2020

PLACE OF DECISION:  Perth

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 (Partner) visa:

·c1.100.222 of Schedule 2 to the Regulations, Sub regulation 2.03AA(2)(a)

Statement made on 27 May 2020 at 3:15pm

CATCHWORDS
MIGRATION –Partner (Migrant) (Class BC) visa – Subclass 100 – Public Interest Criteria (PIC) 4001 met – NBI Clearance Certificate provided – AFP National Police Report provided –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA, Schedule 2, cl 100.222

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 on 20 December 2019 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 October 2015 on the basis of her relationship with her sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy c1.100.222 which requires the applicant meet Public Interest Criteria (PIC) 4001.

5. The departmental policy of assessing a person against PIC 4001 is the requirement for the applicant to provide a police certificate for each country in which that person has lived for more than 12 months over the last 10 years, since turning 16 years of age.

6. The delegate emailed the applicant twice, on 02 July 2019 and on 12 November 2019 requesting a police certificate for The Philippines.

7. At the time of the delegate's decision, no reply had been received from the visa applicant.

8. The delegate therefore found that the applicant had not satisfied the prescribed criterion in paragraph 2.03AA(2)(a) and therefore did not meet sub regulation 2.03AA(2) in its entirety.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration: consideration of claims and evidence.

10. The issue in the present case is whether the applicant has provided the required police certificate for issue by an appropriate authority that provides evidence about whether or not the person has a criminal history.

    Consideration of evidence

11. On 7 January 2020, the parties provided the Tribunal with the following document for the visa applicant:

    ·     Republic of Philippines, Department of Justice, National Bureau of Investigations, NBI Clearance Certificate for the visa applicant, dated 07 January 2020 and;

    ·     Australian Federal Police, National Police Report for the visa applicant, dated 21 February 2020.

12. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 100 visa.

DECISION

1. 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 (Partner) visa:

   · c1.100.222 of Schedule 2 to the Regulations, Sub regulation 2.03AA(2)(a)

   Joseph Francis
   Member