Thenabadu (Migration)

[2023] AATA 227

Thenabadu (Migration) [2023] AATA 227 (12 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shehan Pramodya Thenabadu

CASE NUMBER:  2118135

HOME AFFAIRS REFERENCE(S):          BCC2021/398267

MEMBER:Naomi Schmitz

DATE:12 January 2023

PLACE OF DECISION:  Melbourne

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 12 January 2023 at 3:25pm      

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Australian police clearance certificate and Sri Lankan police clearance certificate provided – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, r 2.03AA(2)

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 15 March 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, cl.600.213 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. On 27 August 2021, the Department requested in writing that the applicant provide a statement by an appropriate authority in Australia and any other country where the applicant had lived for a total of 12 months or more in the last 10 years that provides evidence of his criminal history (if any). The applicant did not provide a statement or any evidence in response to the Department’s request or any information regarding the applicant’s attempts to obtain the statement(s).

6. On 2 December 2021, the delegate refused to grant the visa on the basis that the applicant did not meet reg 2.03AA because the applicant failed to provide his police clearance certificates. The applicant seeks a review of the delegate’s decision.

7. On 21 December 2022, the Tribunal invited the applicant under s.359(2) to provide information regarding how the applicant satisfies Regulation 2.03AA that is:

   ·A statement provided by an appropriate authority in Australia or any other country where the person resides, or has resided, for a total of 12 months or more, in the last ten years since turning 16 years, that provides evidence about whether or not the person has a criminal history (ie. police clearance).

   Please note police clearance certificates are valid for 12 months from the date of issue.

8. On 21 December 2022, the Tribunal also invited the applicant under s.360(1) of the Act to appear at a Tribunal hearing via Microsoft Teams commencing at 9:00am (VIC time) on 16 January 2023 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

9. On 3 January 2023 and 11 January 2023, the applicant filed various documents referred to in paragraph [13] below.

10. On 11 January 2023, the Tribunal considered the information provided by the applicant and was satisfied that based on the information available to it, it could make a decision favourable to the applicant without proceeding to a hearing, pursuant to s.360(2)(a) of the Act. On 11 January 2023, the Tribunal wrote to the applicant and advised the same and the hearing was cancelled.

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

    consideration of claims and evidence

12. The primary decision record, a copy of which the applicant provided to the Tribunal, indicates that the applicant failed to provide his Australian and overseas police clearance certificates upon request of the delegate.

13. On 3 January 2023, the applicant provided to the Tribunal a copy of his Australian Federal Police National Police Certificate dated 21 December 2022 disclosing no criminal record. The applicant further advised the Tribunal that he had applied for his Sri Lankan police clearance certificate which was in the final stages of approval. Enclosed in support was a screenshot of his pending clearance application. On 11 January 2023, the applicant provided a copy of his Sri Lankan police clearance certificate dated 31 December 2022.

14. As the applicant has provided a statement from the appropriate authorities, he therefore meets reg 2.03AA(2)(a).

    decision

15. 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).

    Naomi Schmitz
    Member