Taing (Migration)

[2022] AATA 669

Taing (Migration) [2022] AATA 669 (9 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kieng Taing
Mr Hong Kuy

CASE NUMBER:  2118822

HOME AFFAIRS REFERENCE(S):          BCC2021/116839

MEMBER:Anne Grant

DATE:9 March 2022

PLACE OF DECISION:  Melbourne

DECISION:In relation to the first named applicant, the Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

Public interest criterion 4001 for the purposes of cl 600.213(1) of Schedule 2 to the regulations·     

In relation to the second named visa applicant, the Tribunal does not have jurisdiction in this matter.

Statement made on 09 March 2022 at 12:01pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – character test – evidence of criminal history – evidence of no Criminal Record from Cambodia provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 600.213; Schedule 4, Public Interest Criterion 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 on 22 November 2021 to refuse to grant the first named visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named visa applicant applied for the visa on 14 January 2021.

3. The application for review to the Tribunal included the first-named applicant’s husband, who has a separate review before the Tribunal (2118835) and who was not named in the Delegate’s decision here under review.  A separate decision has been made on Mr Kuy’s visa application. On 9 March 2022 the Tribunal has determined that review and remitted the matter with the direction that he meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa: public interest criterion 4001 for the purposes of cl 600.213(1) of Schedule 2 to the regulations.  

4. The second named applicant is not named as a visa applicant in the decision here under review. There is therefore no reviewable decision in relation to the second named visa applicant in this review.  A separate review and decision has already been made in his separate case.  For these reasons, the Tribunal determines that it does not have jurisdiction to make a decision in respect of the second named applicant.   

5. In relation to the first named applicant, the delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.213(1) because she did not satisfy public interest criteria (PIC) 4001.

6. The Tribunal did not consider a hearing to be necessary as it was able to remit the matter on the material before it and had already made a favourable decision in the second applicant’s related case.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8.    The issue in this case is whether PIC 4001 is met, which requires the Minister (or the Tribunal standing in the Minister’s shoes) to be satisfied that the visa applicant passes the character test; or the Minister to be satisfied that there is nothing to indicate that she would fail to satisfy the Minister that she passes the character test; or the Minister has decided not to refuse to grant a visa to her, despite reasonably suspecting that she does not pass the character test; or the Minister has decided not to refuse to grant a visa to her despite not being satisfied that she passes the character test.

9.    According to the Departmental file, the applicant was requested by the Department on 19 July 2021 and 14 September 2021 to provide a statement by an appropriate authority in Cambodia that provided evidence about whether or not she has a criminal history. The delegate had already received a National Police Certificate from  the Criminal Records section of the Australian Federal Police dated 23 March 2021 but had not received a statement from any Cambodian authority by the time they made the decision here under review. The delegate found that she therefore did not satisfy PIC 4001.

10.   On 10 December 2021 the applicant sent to the Tribunal a copy of a Bulletin of Criminal Record from the Kingdom of Cambodia (and English translation) dated 4 November 2021 which certifies that the applicant does not have any imprisonment record registered by the Ministry of Justice to the date of the bulletin.

11.   On the evidence before it, the Tribunal finds that the applicant satisfies the character test and the requirements in PIC 4001 are met for the purposes of cl 600.213(1).

12.   Given the above finding, the appropriate course is for the Tribunal to remit the visa application to the Minister for reconsideration of the remaining criteria for the Subclass 600 visa.

DECISION

1. In relation to the first named applicant, the Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

   • Public interest criterion 4001 for the purposes of cl 600.213(1) of Schedule 2

   to the Regulations.

   In relation to the second named applicant, the Tribunal does not have jurisdiction in this matter.

   Anne Grant

   
   

   Member