BARROS SILVA DEFANTI (Migration)

[2019] AATA 1546

BARROS SILVA DEFANTI (Migration) [2019] AATA 1546 (29 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ALESSANDRO BARROS SILVA DEFANTI

CASE NUMBER:  1838181

DIBP REFERENCE(S):  BCC2016/2569539

MEMBER:Moira Brophy

DATE:29 January 2019

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 29 January 2019 at 1:45pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – police certificates provided – no criminal history – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2, cl 820.223, PIC 4001

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in the present case is whether the visa applicant, Mr Alessandro Barros Silva Defanti meets public interest criteria (PIC) 4001 referred to in cl.820.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of a Partner (Temporary) (Class UK) Subclass 820 visa.

   APPLICATION FOR REVIEW

2. 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).

3. The applicant applied for the visa on 3 August 2016. 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.

4. One of the criteria for the grant of a Subclass 820 visa is cl.820.223 which 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.

5. 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.

6. On 21 November 2018 the Department wrote to the applicant and requested additional information specifically Police Clearance certificates from Brazil and Australia. The applicant had provided information at the time of application that he had lived in both countries for a cumulative period of more than 12 months in the preceding ten years.

7. On 31 December 2018 the delegate refused to grant the visa on the basis that the applicant had not provided a police certificate or other statement provided by an appropriate authority in either Brazil or Australia. Since the document had not been provided the visa applicant was not able to satisfy the prescribed criterion in paragraph 2.03AA (2(a)) and accordingly he did not meet the criterion for the grant of a Partner (Temporary)(Class UK) (Subclass820) visa.

8. The applicant seeks review of this decision.

9. No hearing was held in this case because the Tribunal determined it was able to make a favourable decision on the materials before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Has the applicant provided a statement from an appropriate authority?

10. On 4 January 2019 the applicant provided a certified copy of a National Police Certificate to the Tribunal from Australian Federal Police dated 10 March 2017 which shows no disclosable court outcomes. A certified translated copy of an Extract from a Police Certificate issued by the Federal Public Service from the Ministry of Public Security in Brazil dated 31 December 2018 indicated there were no convictions recorded in Brazil.

11. The applicant has provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

12. 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 certificates and did not meet r.2.03AA, which was necessary for an assessment of PIC 4001. As the applicant has provided the police certificate, the delegate is now able to assess whether the applicant meets PIC 4001 for the purposes of cl.801.223.

13. 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 Subclass 820 visa.

    DECISION

14. 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).

    Moira Brophy
    Member