Bin Azizan (Migration)

[2022] AATA 5007

Bin Azizan (Migration) [2022] AATA 5007 (6 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmad Afdholuddin Bin Azizan

CASE NUMBER:  2213686

HOME AFFAIRS REFERENCE(S):          BCC2019/2701050

MEMBER:Russell Matheson

DATE:6 December 2022

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 06 December 2022 at 12:36pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal history statement – Australian national police certificate received by tribunal – no disclosable court outcomes – clearance from home country applied for – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 4, criterion 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 (Cth) (the Act).

2. The applicant applied for the visa on 24 May 2019. The criteria for a Partner (Temporary) (Class UK) 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, r 2.03(2) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. 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 25 August 2022 on the basis that the applicant did not meet reg 2.03AA because evidence of criminal history was not provided as required to satisfy a criterion for the grant of the visa under the Regulations. Considering the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

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 a statement by an appropriate authority that provides evidence about whether the person has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

8. On 10 November 2022, the Tribunal received a copy of a National Police Certificate from the Australian Federal Police, Co-ordinator Criminal Records, certifying that there are no disclosable court outcomes recorded against the name of Ahmad Afdholuddin Bin Azizan born on 5 June 1995, who advised that they are or have been previously known as Bin Azzizan Ahmad Afdholuddin. The Tribunal notes the applicant has lived in Malaysia for a cumulative period of 12 months or more, over the last 10 years, since turning 16 years of age. Therefore, he is required to produce a Malaysian police clearance with his application. The applicant informed the Tribunal that he has applied for a Malaysian police clearance in January 2021 and has recently applied for a new clearance that take approximately 2 months to arrive. The Tribunal accepts that is reasonable to wait for the police clearance from Malaysia to arrive and for it to be assessed at that time.

9. The applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a). Conclusion

   Conclusion

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

    decision

11. 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).

    Russell Matheson
    Member