1511353 (Migration)

[2016] AATA 4006

1511353 (Migration) [2016] AATA 4006 (29 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Leanna Lizzie Drummond Butler

CASE NUMBER:  1511353

DIBP REFERENCE(S):  clf2014/80037

MEMBER:Suzanne Carlton

DATE:29 April 2016

PLACE OF DECISION:  Adelaide

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 of the Migration Regulations.

Statement made on 29 April 2016 at 4:06pm

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 12 August 2015 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 27 May 2014.  The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.223(1)(a) of Schedule 2 to the Regulations.  This requires, among other things, that the applicant satisfies Public Interest Criterion 4001 (PIC 4001).

3. The delegate also correctly identifies that Regulations 2.03AA is a prescribed additional criterion in the applicant’s circumstances.  The delegate concludes that as the additional prescribed criterion was not satisfied (being relevant police clearances from the Australian Federal Police and from the United Kingdom), the requirements of cl.820.223(1)(a) of Schedule 2 to the Regulations were not met. 

4. For the purposes of this review, I restrict my consideration to whether the applicant satisfies the additional criterion imposed in r.2.03AA.

   Regulation 2.03AA

5. Public Interest Criterion (PIC) 4001 refers to a character test under the Act. Most visa subclasses provide that the Minister must be satisfied that the visa applicant meets the requirements of PIC 4001 as a criterion for the grant of the visa.

6. Where a person is required to satisfy PIC 4001 for the grant of the visa, additional criteria are prescribed under r.2.03AA that must be met for the grant the visa. The additional criteria are essentially a codification of a long-standing administrative practice at the Department requesting that applicant’s provide police clearances and criminal histories from countries where they reside, or have previously resided, so that decision-makers can assess an applicant’s ability to satisfy PIC 4001. These criteria require an applicant to provide requested documentation or information relating to the applicant’s character and criminal history and thus, the criteria enables visa applications to be refused as a direct consequence of non-provision of the required documentation.

7. Specifically, r.2.03AA requires that where the Minister has requested certain documents or information, the person has provided the documents or information. The documents or information that can be requested are as follows:

   (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; and

   (b)completed approved form 80.

8. The delegate, in her decision to refuse the visa, indicated that a request for police clearances from Australia and the United Kingdom were made by her to the applicant on 1 May 2015. As at the date of her decision, being 12 August 2015, the applicant had not provided the required documents or information.

9. The applicant applied for review to this Tribunal on 21 August 2015.

10. On 21 August 2015 the applicant provided a copy of her UK police clearance dated 7 July 2015.

11. On 22 August 2015 the applicant provided a copy of her Australian Federal police clearance dated 17 August 2015.

12. The Tribunal notes that the applicant had previously provided a completed form 80 to the delegate and the delegate has made no indication that the form 80 does not meet r.2.03AA.

13. Based on the provision of the two police clearances, the Tribunal is satisfied that the applicant meets the requirements of r.2.03AA.

14. The Tribunal notes that an assessment of whether the applicant meets PIC 4001 may involve enquiries and information that goes the on the requirements of r.2.03AA. Accordingly, the Tribunal makes no finding as to whether the applicant meets PIC 4001.

15. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    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 of the Migration Regulations 1994.

    Suzanne Carlton
    Member