Tan (Migration)

[2019] AATA 3191

Tan (Migration) [2019] AATA 3191 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ying Tan

CASE NUMBER:  1829498

DIBP REFERENCE:  BCC2017/2795690

MEMBER:Rosa Gagliardi

DATE:3 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·cl.820.223 of Schedule 2 to the Regulations on the condition that the applicant makes all original documents available to the Department for verification.

Statement made on 03 June 2019 at 11:16am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) –genuine spousal relationship – police clearance provided – no criminal record – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2, cl 820.223, 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 Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 5 August 2017. The delegate refused to grant the visa on 20 September 2018.

2. The delegate made the decision on the basis that the applicant had not provided evidence that she met Public Interest Criteria (PIC) 4001 to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. At the time of decision an applicant must satisfy clause 820.223, which requires that they meet several public interest criteria, including PIC 4001.

4. PIC 4001 requires section 65 delegates to assess a person against the terms of the ‘character test’. Under policy a component of assessing a person against PIC 4001 for temporary or permanent migration is the provision of a police certificate for each country in which that person has lived for 12 months or more, over the last 10 years, since turning 16 years of age. A police certificate is a statement provided by the appropriate authority that provides evidence about whether or not the person has a criminal history. This statement is the key source of information as to a person’s character.

5. As the applicant is required to satisfy PIC 4001 for the grant of the visa, Regulation 2.03AA applies.  Among other things Regulation 2.03AA requires that an applicant provide a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history.

6. The applicant applied for a Partner (Temporary)(Class UK)(Subclass 820) visa and a Partner  (Residence)(Class BS)(Subclass 801) visa on 5 August 2017. 

7. Departmental records show that the applicant lived in Australia and China for a cumulative period of 12 months or more, over the last 10 years since turning 16 years of age.  The delegate requested a police clearance for both Australia and China on 28 February 2018.  No further information was provided.  A final request for information was sent on 2 May 2018 but at the time the Department made its decision on 20 September 2018, the Department had not received police clearances from China and Australia. 

8. The Tribunal notes that the Department had previously received a Chinese translation of the local police certificate from the police station on 5 August 2017, however, this was not the correct document.  A Notary Certificate was required.

9. A notarial certificate dated 4 December 2018 from China has now been submitted to the Tribunal certifying that the applicant had no criminal record up to the day 8 October 2018, when she left China during her residence in the People’s Republic of China.  She has also submitted an Australian Federal Police, National Police Clearance of Complete Disclosure indicating that there were no disclosable court outcomes recorded against the applicant in all Australian States and Territories as at 8 May 2018.

10. The Tribunal notes that the applicant had submitted a copy of the National Police Clearance prior to the Department making its decision – the copy was of very poor quality however.  The copy now received by the Tribunal is clearer but considers that the remittal of this decision is conditional on the Department sighting all original documents.

11. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

    DECISION

12. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·cl.820.223 of Schedule 2 to the Regulations on the condition that the applicant makes all original documents available to the Department for verification.

    Rosa Gagliardi
    Member