Vu (Migration)

[2022] AATA 1302

Vu (Migration) [2022] AATA 1302 (20 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Mang Vu

REPRESENTATIVE:  Ms Nhi Michelle Huynh (MARN: 1069190)

CASE NUMBER:  2201372

HOME AFFAIRS REFERENCE(S):          BCC2021/205383

MEMBER:Melissa McAdam

DATE:20 April 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 20 April 2022 at 3:55pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – character test – evidence of criminal history – Australian Federal Police National Police Certificate 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 Criteria 4001; r 2.03AA

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 5 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, cl 600.213 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. 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 27 January 2022 on the basis that the applicant did not meet reg 2.03AA because she had not provided evidence regarding whether or not she has a criminal history in Australia.

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. On 30 December 2021 the Department Delegate sent a written request to the applicant asking her to provide an Australian Federal Police (AFP) National Police Certificate within 28 days.

9. As at the time of the Delegate’s decision the applicant had not provided an AFP Certificate.

10. On 16 February 2022 the applicant submitted to the Tribunal an Australian Federal Police (AFP) National Police Certificate.

11. The Tribunal therefore finds that the applicant has provided a statement from an appropriate authority and meets reg 2.03AA(2)(a).

12. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in reg 2.03AA(2)(b) does not apply.

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

    DECISION

14. 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).

    Melissa McAdam
    Member