Bass (Migration)

[2019] AATA 3982

Bass (Migration) [2019] AATA 3982 (27 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lamont Bass

CASE NUMBER:  1803844

HOME AFFAIRS REFERENCE(S):           BCC2015/773630

MEMBER:Christine Kannis

DATE:27 August 2019

PLACE OF DECISION:  Perth

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) visa:

·Regulation 2.03AA(2).

Statement made on 27 August 2019 at 6:31am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – criminal history – statement from an appropriate authority – Australian Federal Police (AFP) National Police Check – Police Certificate Federal Bureau of Investigation (FBI) check – drug-related charges – decision under review remitted

LEGISLATION  
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 820.223; 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 Home Affairs 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 8 March 2015 on the basis of his relationship with his sponsor, Ms Rachel Kennedy. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.223(1)(a).  This requires, among other things, that the applicant satisfies Public Interest Criterion 4001 (PIC 4001). Where a person is required to satisfy PIC 4001 additional criteria prescribed under r.2.03AA must be met.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant has provided a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

7. On 10 October 2016, 7 February 2017 and 12 October 2017 the applicant was requested by the delegate to provide an Australian Federal Police (AFP) National Police Check and a Police Certificate Federal Bureau of Investigation (FBI) check from the United States of America within 28 days. The applicant did not provide the requested information.

8. The Tribunal is satisfied that the delegate made a request for the applicant to provide certificates from appropriate authorities, which in this case is the AFP and FBI, in countries where the applicant resides or has resided: Australia and the United States of America. In the circumstances, the applicant has to provide the requested statement to meet the r.2.03AA.

9. On review the Tribunal received a copy of a National Police Certificate - Complete Disclosure dated 28 April 2018 issued by the AFP. The certificate indicates there are no disclosable court outcomes recorded against the applicant’s name.  

10. The Tribunal has also received a FBI Criminal History Report dated 5 August 2018. The document indicates the applicant has charges recorded as – Drugs: Sell/Provide for Resale.

11. As the applicant has now provided the requested statements from the appropriate authorities he meets r.2.03AA(2)(a).

12. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

13. On the basis of the above findings, the Tribunal is satisfied that the applicant meets r.2.03AA(2) and the appropriate course of action is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

14. 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) visa:

    ·Regulation 2.03AA(2)

    Christine Kannis
    Member