Wong (Migration)

[2019] AATA 3709

Wong (Migration) [2019] AATA 3709 (14 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Soon Leong Wong

CASE NUMBER:  1828263

HOME AFFAIRS REFERENCE(S):           BCC2016/2487393

MEMBER:Mary Urquhart

DATE:14 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 14 June 2019 at 2:37pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – Police Clearance certificate – no evidence provided – did not attend hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 362B
Migration Regulations 1994 (Cth), Schedule 2 cl 820.223, 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 Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 July 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.223 because the applicant did not provide a police certificate or other statement by an appropriate authority in Singapore, being a country in which he had resided, that provides evidence about whether or not he had a criminal history. The delegate found that the applicant had not satisfied the prescribed criterion in paragraph 2.03AA(2)(a), and did not meet sub-regulation 2.03AA(2) in its entirety.

4. On 20 May 2019 the Tribunal wrote to the applicant inviting him to attend a hearing on 14 June 2019. The invitation advised that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone. It further advised that if the applicant were not able to attend the hearing he should advise us as soon as possible. He was advised that if he did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it or may dismiss his application for review without any further consideration of the application or the information before it.

5. On 14 June 2019 the applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. In these circumstances, the Tribunal has decided, pursuant to s. 362B of the Act, to make its decision on the review without taking any further action to enable the applicant to appear before it.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the criteria for the visa and in particular the prescribed criterion in paragraph 2.03AA(2)(a), that is evidence that he does not have a criminal history.

8. On 20 March 2019 the Tribunal wrote to the applicant under s.359A requesting that he provide Police clearance certificates from each country he had lived in for 12 months or more over the last 10 years, since turning 16 years of age to respond by 3 April 2019.

9. On 3 April 2019 the applicant requested an extension of time in which to respond to the request under s.359A.

10. On 4 April 2019 the Tribunal granted an extension of time to respond to its request until 18 April 2019.

11. On 18  April 2019 the Tribunal  received a response as follows:

    “Thank you for granting the deadline extension. I would like to inform you that as of today's deadline, I am still unable to obtain the police certificate”.

12. The Tribunal notes the delegate made his decision in September 2018.

13. No further documentation is before the Tribunal.

14. The applicant has not provided a police certificate or other statement provided by an appropriate authority in Singapore, being a country in which he has resided for 12 months or more over the last 10 years, since turning 16 years of age, that provides evidence about whether or not he has a criminal history.

15. As the applicant has provided no claims or evidence to satisfy the Tribunal  that it is not reasonable for him to provide the outstanding documentation the Tribunal  finds that the applicant has not satisfied the prescribed criterion in paragraph 2.03AA(2)(a), and accordingly he does not meet sub regulation 2.03AA(2) in its entirety.

16. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Mary Urquhart
    Member