Thongcharoen (Migration)

[2021] AATA 2854

Thongcharoen (Migration) [2021] AATA 2854 (18 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Parichad Thongcharoen

CASE NUMBER:  2104856

HOME AFFAIRS REFERENCE(S):          BCC2020/1385073

MEMBER:Angela Cranston

DATE:18 June 2021

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 18 June 2021 at 3:34pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 – police certificates from Thailand and Australia provided – decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, PIC 4001, 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 17 April 2020. 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).

1. 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 1 April 2021 on the basis that the applicant did not meet reg 2.03AA because the applicant did not provide her penal certificates. The applicant seeks review of the delegate’s decision.

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

RELEVANT LAW

7. 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 PIC4001. The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

8.    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. 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).

9.    Has the applicant provided a statement from an appropriate authority? The primary decision record indicates that the delegate requested the visa applicant to provide police checks from Thailand and Australia and the applicant had not done so. The delegate was not satisfied r. 2.03AA was met.

1. The visa applicant provided to the Tribunal the visa applicant's police certificates from Thailand and Australia. As the visa applicant has provided statements from the appropriate authorities, she therefore meets reg 2.03AA(2)(a).

2. On the basis of the above findings, the applicant meets reg 2.03AA(2).

DECISION

1. 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).

Angela Cranston
Member