SUITULAGA (Migration)

[2022] AATA 4951

SUITULAGA (Migration) [2022] AATA 4951 (25 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr UALESI SUITULAGA

CASE NUMBER:  2118515

HOME AFFAIRS REFERENCE(S):          BCC2021/185275

MEMBER:Moira Brophy

DATE:25 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 25 July 2022 at 3:27pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – criminal history – statement from an appropriate authority – statement from Ministry of Police, Samoa Police Headquarters – 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 1 February 2021. 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(1) 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 25 November 2021 on the basis that the applicant did not meet reg 2.03AA because he had failed to provide a statement from an appropriate authority in Samoa.

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 Samoa on 18 March 2021, on 20 May 2021 and on 20 August 2021. As at the date of the decision of the delegate that documentation had not been provided.

9. On  7 December 2021 the applicant provided to the Tribunal a statement from Ministry of Police, Samoa Police Headquarters a document (Ref21/15703) dated 1 December 2021. That statement was to the effect that the applicant had no criminal convictions recorded as at the date of the report.

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