Ahlschlaeger (Migration)

[2022] AATA 3333

Ahlschlaeger (Migration) [2022] AATA 3333 (23 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Luca Simon Ahlschlaeger

REPRESENTATIVE:  Mr Seongin Son

CASE NUMBER:  2203581

HOME AFFAIRS REFERENCE(S):          BCC2020/1298703

MEMBER:Meena Sripathy

DATE:23 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

·Regulation 2.03AA(2)

Statement made on 23 August 2022 at 10:00am

CATCHWORDS

MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – criminal history – Australian and German police certificates provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 461.223; Schedule 4, Public Interest Criterion 4001; r 2.03

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 on 22 February 2022 to refuse to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 April 2020. The criteria for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) 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.

3. 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.461.223 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

4. 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.

5. The delegate refused to grant the visa on 22 February 2022 on the basis that the applicant did not meet reg 2.03AA because the applicant was requested to provide, but did not provide as at the date of the decision, police clearance certificates from Australia and Germany.

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

   consideration of claims and evidence

7. The issue in this case is whether the applicant has provided statements by appropriate authorities that provides evidence about whether or not the person has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

8. On 11 January 2022 the delegate made a request for the applicant to provide police certificates from Australia and Germany. No response was provided by the time of the delegate’s decision on 22 February 2022 and the application was refused on the basis that the applicant did not meet subregulation 2.03AA(2).

9. On 22 May 2022 the Tribunal invited the applicant to provide the police certificates previously requested by the Department. On 25 May 2022 the Tribunal received a copy of a police clearance certificate issued by the Australian Federal Police, dated 10 February 2022.  An extension of time was requested to provide the German certificate which had been applied for. 

10. On 2 August 2022 the Tribunal received a copy of the German police certificate dated 7 July 2022.

11. The applicant has provided statements from appropriate authorities as requested and therefore meets reg 2.03AA(2)(a). 

    Conclusion

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

    decision

13. The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

    ·Regulation 2.03AA(2).

    Meena Sripathy
    Member