YGONIA (Migration)

[2017] AATA 2317

YGONIA (Migration) [2017] AATA 2317 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rojean Amandoron YGONIA

CASE NUMBER:  1615571

DIBP REFERENCE(S):  BCC2014/2039389

MEMBER:Kira Raif

DATE:8 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·Regulation 2.03AA. 

·PIC 4007(1)(a), (b) and (c) for the purpose of cl. 820.223.

Statement made on 08 November 2017 at 11:19am

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Requirement to undergo medical examination – Requirement to provide police clearance certificate – Applicant provided relevant certificates

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 2.03AA, Schedule 2, cl 820.223, Schedule 4, PIC 4001, PIC 4007

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 2 September 2016 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 is a national of the Philippines, born in August 1990. She applied for the visa on 19 August 2014 on the basis of her relationship with her sponsor. 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 relevant police certificates and failed to complete medical examinations. The delegate was not satisfied the applicant met Items 4001 and 4007 of Schedule 4 to the Regulations. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the materials before it.

   Relevant law

4. One of the issues in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007. PIC 4007 requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. This last requirement may be waived in certain circumstances.

5. Clause 820.223 also requires that the applicant meets Public Interest Criteria including PIC 4001. Where a person is required to satisfy PIC 4001 for the grant of a visa, there are additional criteria prescribed under r.2.03AA that must be met for the grant of visa. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s character and criminal history.

6. Regulation 2.03AA(1) states that, in addition to the criteria prescribed by Regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or PIC 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

7. Regulation 2.03AA(2) provides that 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.

   Does the applicant meet regulation 2.03AA?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the delegate contacted the applicant on several occasions requesting her to provide a police clearance certificate from the Philippines and Australia. It appears the applicant failed to provide her police clearance certificates and as a result, her application was refused.

9. The Tribunal requested the applicant to provide the relevant documents. She has now provided to the Tribunal copies of her penal certificates from Australia and the Philippines. The certificates do not indicate any prior convictions or criminal data.

10. The Tribunal is satisfied that the Minister requested a statement provided by an appropriate authority in a country where a person resides, or has resided, that provides evidence about whether or not the person has a criminal history. The Tribunal is satisfied that the applicant has now provided to the Tribunal a copy of the relevant penal certificates. A completed form 80 appears on the Departmental file. The Tribunal is satisfied that the applicant meets r.2.03AA(2) and therefore meets r.2.03AA.

11. Although the delegate found that the applicant did not satisfy cl.820.223, this finding appears to have been made on the basis that as the applicant failed to provide the police certificate and did not meet r.2.03AA, which was necessary for an assessment of PIC 4001. As the applicant has provided the relevant police certificates, the delegate is now able to assess whether the applicant meets PIC 4001 for the purposes of cl.820.223.

12. The Tribunal considers the appropriate course of action is to remit the application to the Minister to undertake consideration of whether the applicant meets PIC 4001 for the purposes of cl.820.223 and the remaining criteria for the grant of a Partner visa.

    Does the applicant meet PIC 4007?

13. The primary decision record also indicates that the applicant was required to undertake medical examinations but has not done so.

14. At the time of this decision, Departmental electronic records indicate that the applicant has completed medical examinations and there are no significant findings recorded with respect to the applicant.

15. Having regard to that information, the Tribunal is satisfied that the applicant is free from tuberculosis, a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community. The Tribunal is also satisfied that the applicant is free from a disease or condition in relation to which a person who has it would be likely to require health care or community services or meet the medical criteria for the provision of a community service. The Tribunal is satisfied that the applicant meets PIC4007(1)(a), (b) and (c) for the purpose of cl. 820.223.

    DECISION

16. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    ·Regulation 2.03AA. 

    ·PIC 4007(1)(a), (b) and (c) for the purpose of cl. 820.223.

    Kira Raif
    Senior Member