Brown (Migration)

[2019] AATA 6047

Brown (Migration) [2019] AATA 6047 (21 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jennifer Lynn Brown

CASE NUMBER:  1921866

DIBP REFERENCE(S):  BCC2017/2152744

MEMBER:Kira Raif

DATE:21 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

·Regulation 2.03AA(2)

Statement made on 21 October 2019 at 10:39am

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – Australian Federal Police Complete Disclosure Certificate provided – no disclosable court outcomes – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2, cl 461.223, Public Interest 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 Immigration to refuse to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 June 2017. The delegate refused to grant the visa on 25 July 2019 on the basis that the applicant did not meet r.2.03AA because the applicant failed to provide her Australian police certificate..

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

   Relevant law

4. The criteria for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) 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, cl. 461.223 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).

6. 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?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in March 2019 the delegate wrote to the applicant inviting her to provide the AFP Certificate. The applicant had not done so and the delegate was not satisfied the applicant met r. 2.03AA.

8. On 30 September 2019 the applicant provided to the Tribunal the AFP Complete Disclosure Certificate showing no disclosable court outcomes.

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

   Conclusion

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

    DECISION

11. The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

    ·Regulation 2.03AA(2).

    Kira Raif
    Senior Member