Bernhardt (Migration)

[2019] AATA 2462

Bernhardt (Migration) [2019] AATA 2462 (18 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Magali Bernhardt

CASE NUMBER:  1810666

DIBP REFERENCE(S):  CLF2011/38591

MEMBER:Moira Brophy

DATE:18 April 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 18 April 2019 at 1:28pm

CATCHWORDS
MIGRATION – Partner (Temporary)(Class UK) – Subclass 820 (Spouse) – information not provided relating to character and criminal history – applicant has since provided relevant police certificates – decision under review remitted

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

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in the present case is whether the visa applicant, Ms Magali Bernhardt 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 (Residence) (Class BS) Subclass 801 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 7 March 2011. 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. On 11 April 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 both Germany and Australia, being the countries in which the applicant had resided for a cumulative period of more than 12 months over the past ten years. Those documents were required as they provide evidence about whether or not the applicant has a criminal history. Since the documents had not been provided the visa applicant was not able to satisfy the prescribed criterion in paragraph 2.03AA and accordingly she did not meet the criterion for the grant of a Partner (Residence)(Class BS) (Subclass801) visa.

5. The applicant seeks review of this decision.

6. No hearing was held in this case because he 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

   Relevant law

7. One of the criteria for the grant of a Subclass 801 visa is cl.801.223 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. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s character and criminal history. 

8. Regulation 2.03AA(1) states that, in addition to the criteria prescribed by Regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or PIC 4002 for the grant of a visa, the criterion in sub regulation (2) is prescribed.

9. Regulation 2.03AA(2) provides that iif the Minister has requested the following documents or information, the person has provided the documents or information:

   (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;

   (b)  a completed approved form 80.

   Does the applicant meet Regulation 2.03AA?

10. Although the delegate found that the applicant did not satisfy cl.820Bernhardt.223, this finding appears to have been made on the basis that as the applicant failed to provide the police certificate and did not meet r.2.03AA, which was necessary for an assessment of PIC 4001.

11. Ms Bernhardt submitted a certified copy of a National Police Certificate to the Tribunal from Australian Federal Police dated 27 April 2018 which shows no disclosable court outcomes. A certified translation of a good Conduct /Penal Certificate issued by the Chief Federal Prosecutor of the Federal Supreme Court in Bonn Germany dated 26 March 2018 indicated there were no convictions recorded.

12. The Tribunal is satisfied that the Minister requested a statement provided by an appropriate authority in a country where a person resides, or has resided, which provides evidence about whether or not the person has a criminal history. The Tribunal is satisfied that the applicant has now provided to the Tribunal copies of the AFP certificates and the certificate from Germany. A completed form 80 appears on the Departmental file. The Tribunal is satisfied that the applicant meets r.2.03AA(2) and therefore meets r.2.03AA.

13. 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 required police certificates and did not meet r.2.03AA, which was necessary for an assessment of PIC 4001. As the applicant has now provided the police certificates, the delegate is now able to assess whether the applicant meets PIC 4001 for the purposes of cl.820.223.

14. 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

15. 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