Barker (Migration)

[2020] AATA 3225

Barker (Migration) [2020] AATA 3225 (5 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Darren James Barker

CASE NUMBER:  2003379

DIBP REFERENCE(S):  BCC2017/3916063

MEMBER:Kira Raif

DATE:5 May 2020

PLACE OF DECISION:  Sydney

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

·Regulation 2.03AA(2)

Statement made on 05 May 2020 at 5:58pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – criminal history – statement from an appropriate authority – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration 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 20 October 2017. The delegate refused to grant the visa on 14 February 2020 on the basis that the applicant did not meet r.2.03AA because the applicant failed to provide his police clearance certificates from the countries where he previously resided.

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

   Relevant law

4. The criteria for a Partner (Temporary) (Class UK) visa are set out in Schedule 2 to the Migration Regulations 1994 (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: r.2.03AA(1). In this case, of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in r.2.03AA(2). 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 r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

   Has the applicant provided a statement from an appropriate authority?

6. The primary decision record indicates that the delegate requested the applicant to provide police clearance certificates from Australian, Canada and New Zealand but the applicant failed to do so. The applicant had provided the three certificates to the Tribunal.

7. The Tribunal finds that the applicant has provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

   Conclusion

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

   DECISION

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

   ·Regulation 2.03AA(2).

   Kira Raif
   Senior Member