Collier (Migration)

[2023] AATA 1840

Collier (Migration) [2023] AATA 1840 (8 June 2023)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Brennan Michael Collier

REPRESENTATIVE:  Sir Christel Anne Dajcz (MARN: 1066568)

CASE NUMBER:  2305389

HOME AFFAIRS REFERENCE(S):          BCC2019/1848234

MEMBER:Anne Grant

DATE:8 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·Public Interest Criterion 4001 for the purposes of cl 820.223 of Schedule 2 to the Regulations.

Statement made on 08 June 2023 at 2:47pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal history – Australian National Police Certificate and Canadian National Criminal Records certificate provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 820.223; Schedule 4, 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 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). The applicant applied for the visa on 14 April 2019. The delegate refused to grant the visa on 12 April 2023.

2. The delegate made the decision on the basis that evidence of criminal history was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).The delegate had not received the required criminal history checks by the time the decision to refuse the visa was made.

3. On 20 April 2023, the applicant submitted to the Tribunal a Digital National Police Certificate from the Criminal Records section of the Australian Federal Police dated 19 April 2023.  This certificate states that the visa applicant did not have any disclosable court outcomes recorded against them, as at the date of the certificate.

4. On 15 May 2023, the Tribunal received a National Criminal Records certificate from the Royal Canadian Mounted Police, Ottawa, Canada which stated that a search of the National Criminal Records concerning the applicant was not associated to any criminal record of conviction.  The applicant’s fingerprints were shown on the certificate.     

5. In light of 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. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   DECISION

7. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

   •          Public Interest Criterion 4001 for the purposes of cl 820.223 of Schedule 2 to the Regulations.

   Anne Grant
   Member