Coetzee (Migration)

[2023] AATA 382

Coetzee (Migration) [2023] AATA 382 (27 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Brandon Lyall Coetzee

REPRESENTATIVE:  Mr George Lombard

CASE NUMBER:  2206100

HOME AFFAIRS REFERENCE(S):          BCC2020/2667674

MEMBER:Linda Holub

DATE:27 February 2023

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 27 February 2023 at 1:01pm

CATCHWORDS

MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – criminal history – Australian Federal Police certificate provided upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 461.223; Schedule 4, Public Interest Criterion 4001; r 2.03AA

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 New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 November 2020. The criteria for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) 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, clause 461.223 of Schedule 2 of the Regulations requires the applicant to meet PIC4001.The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

1. 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 6 April 2022 on the basis that the applicant did not meet reg 2.03AA because the applicant did not provide the requested police certificates from Australia.

6.    On the evidence before it, the Tribunal considered it would be appropriate to make a favourable decision on the papers.

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

consideration of claims and evidence

8.    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?

9.    The delegate noted that after assessing the visa application, a delegate of the Minister sent a letter by email on 9 February 2022 requesting further information, which included a request for a police certificate from Australia. On 9 March 2022 his migration agent sent an email requesting a 7-day extension to provide evidence he had applied for a police certificate in Australia. On 14 March 2022 a delegate sent an email advising the Department would delay making a decision on the application for 7 days. On 22 March 2022 a further extension of time to provide the documents was requested. On 24 March a delegate sent an email advising the Department would delay making a decision on the application for a further 7 days. At the date of the Department’s decision the applicant had not responded to the request and on that basis the Department refused the application

1. On 12 May 2022 the applicant’s migration agent provided the Tribunal with a copy of a certificate issued by the Australian Federal Police dated 8 April 2022 which shows seven disclosable court outcomes from June 2017 to June 2021.

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

3. There is no evidence that the delegate made a request for the applicant to provide a therefore the requirement in reg 2.03AA(2)(b) does not apply.

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

decision

1. 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).

Linda Holub
Member