Cokataki (Migration)

[2022] AATA 3162

Cokataki (Migration) [2022] AATA 3162 (12 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Nicky Mohana Cokataki

CASE NUMBER:  2210929

HOME AFFAIRS REFERENCE(S):          BCC2019/1658248

MEMBER:Linda Holub

DATE:12 September 2022

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 12 September 2022 at 5:15pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – criminal history – police certificates from home country and Australia provided to tribunal – no criminal history recorded – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 2, cl 461.223, 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 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 2 April 2019. 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 PIC 4001. 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 12 July 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 and Fiji showing whether or not she has a criminal history.

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 appropriate authorities that provide evidence about whether or not the person has a criminal history.

Has the applicant provided a statement from an appropriate authority?

8.    Following the lodgement of the review application, the applicant provided the Tribunal with the following information:

• A copy of a Digital National Police certificate issued by the Australian Federal Police for the purpose of 'Immigration Citizenship'; and

• A copy of a Police Clearance Certificate issued by the Fiji Police Force.

9.    Both documents show that the applicant has no criminal history recorded.

1. The applicant has provided statements from appropriate authorities and therefore meets reg 2.03AA(2)(a).

2. In view of the statements provided the applicant, the Tribunal determined that a hearing was not required and proceeded to make a decision on the basis of the evidence before the Tribunal.

Conclusion

1. 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