Wanigasekera (Migration)

[2022] AATA 1767

Wanigasekera (Migration) [2022] AATA 1767 (13 April 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Sunethra Wanigasekera

CASE NUMBER:  2200246

HOME AFFAIRS REFERENCE:                BCC2020/2310239

MEMBER:  L. Symons

DATE:  13 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 (Visitor) visa:

·PIC 4001(a) for the purposes of cl 600.213(1) of Schedule 2 to the Regulations.

Statement made on 13 April 2022 at 4:30pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – criminal history – statement by an appropriate authority – National Police Certificate issued by the Australian Federal Police – Police Clearance Certificate from Sri Lanka – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 56, 65

Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 600.213; Schedule 4, 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 on 21 December 2021 to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant applied to the Department of Immigration (the Department) for the visa on 15 September 2020. The delegate refused to grant the visa on the basis that she did not satisfy the requirements of cl.600.213(1) because she did not meet the requirements of Public Interest Criterion (PIC) 4001.

1. On 6 January 2022, the applicant applied to the Tribunal for a review of that decision.

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

CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

1. The issue in this review is whether the applicant meets PIC 4001 as required by the criteria for the grant of the visa. PIC 4001 provides as follows:

PIC 4001:

Either:

(a)the person satisfies the Minister that the person passes the character test; or

(b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

(c)the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

(d)the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

1. Regulation 2.03AA of the Migration Regulations, as attached to this decision, provides the criteria applicable to character tests and security assessments. This includes the provision of a statement provided by an appropriate authority in a country (such as the Police force) where the applicant resides, or has resided, that provides evidence about whether or not the applicant has a criminal history (r.2.03AA(2)(a)).

1. The Department wrote to the applicant on 29 September 2020, 25 November 2020 and 20 January 2021, pursuant to s.56 of the Act, requesting that she provide the Department with a National Police Certificate issued by the Australian Federal Police and a Police Clearance Certificate from each country where she has lived for a total of 12 months or more in the last 10 years within 28 days. On 16 February 2021, she provided the Department with evidence that she had applied for a National Police Certificate on 17 October 2020 and it was being processed.

1. The Department wrote to the applicant on 12 March 2021, pursuant to s.56 of the Act, requesting that she provide the Department with a Police Clearance Certificate from Sri

Lanka. On 15 April 2021, the Department wrote to her again, pursuant to s.56 of the Act, requesting that she provide the Department with a National Police Certificate issued by the Australian Federal Police and a Police Clearance Certificate from each country where she has lived for a total of 12 months or more in the last 10 years within 28 days. On 29 July 2021, she provided the Department with a Police Clearance Certificate dated 28 May 2021 which indicated that she had not come to the adverse notice of the Sri Lanka Police during the period 23 February 1952 to 11 May 2021 according to available records.

1. On 9 August 2021,13 October 2021 and 15 November 2021, the Department wrote to the applicant, pursuant to s.56 of the Act, requesting that she provide the Department with a National Police Certificate issued by the Australian Federal Police within 28 days. She did not provide the Department with the requested Certificate. The Minister’s delegate was therefore not satisfied that she passed the character test and her visa application was refused on this basis.

Does the applicant pass the character test (PIC 4001(a))?

1. The applicant has provided the Tribunal with a copy of a clear National Police Certificate (8980789PC) dated 23 February 2022 issued by the Australian Federal Police.

1. For these reasons, the Tribunal finds that the requirements in PIC 4001(a) are met.

1. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

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 (Visitor) visa:

   ·PIC 4001(a) for the purposes of cl 600.213(1) of Schedule 2 to the Regulations.

L. Symons Member

ATTACHMENT

Public Interest Criteria [PIC]

4001  

Either:

(a)the person satisfies the Minister that the person passes the character test; or

(b)   the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

(c)   the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

(d)   the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

(1)   In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

(2)   If the Minister has requested the following documents or information, the person has provided the documents or information:

(a)   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;

(b)a completed approved form 80.

Note:  For paragraph (a), an example of an appropriate authority is a police force.

(3)   The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.