WU (Migration)

[2021] AATA 2840

WU (Migration) [2021] AATA 2840 (16 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr HAIDA WU
Mrs LAN YU

CASE NUMBER:  1926616

HOME AFFAIRS REFERENCE(S):          CLF2015/16375

MEMBER:Kira Raif

DATE:16 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Aged Parent (Residence) (Class BP) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 804 visa:

·Regulation 2.03AA(2)

Statement made on 16 June 2021 at 12:41pm

CATCHWORDS

MIGRATION – Aged Parent (Residence) (Class BP) visa – subclass 804 – AFP certificates with no disclosable outcomes provided – decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, r 2.03AA; 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 Home Affairs to refuse to grant the applicants Aged Parent (Residence) (Class BP) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 13 May 2015. The delegate refused to grant the visas on 18 September 2019 on the basis that the applicant did not meet reg 2.03AA because the visa applicants failed to provide their AFP certificates.

3. 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

4. The criteria for a Aged Parent (Residence) (Class BP) 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.

5. 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. 804.225 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).

6. 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.

   Have the applicants provided a statement from an appropriate authority?

7. The primary decision record indicates that the delegate wrote to the applicants inviting them to provide their AFP certificates. The applicant had not done so and the delegate was not satisfied the applicant met r. 2.03AA.

8. The review applicants provided to the Tribunal their AFP Certificate which show no disclosable outcomes. As the applicants have provided statements from an appropriate authority, they therefore meets reg 2.03AA(2)(a).

   Conclusion

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

   DECISION

10. The Tribunal remits the applications for Aged Parent (Residence) (Class BP) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 804 visa:

    ·Regulation 2.03AA(2).

    Kira Raif
    Senior Member