Cooperstein (Migration)

[2018] AATA 2436

Cooperstein (Migration) [2018] AATA 2436 (1 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Marilyn Cooperstein

CASE NUMBER:  1731973

DIBP REFERENCE(S):  BCC2015/182214

MEMBER:Mary Urquhart

DATE:1 June 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·cl.820.221 of Schedule 2 to the Regulations

Statement made on 01 June 2018 at 11:00am

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Police clearance certificate not provided to the Department – Police clearance certificate subsequently provided to the Tribunal – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2, cl 820.223, Schedule 4, PIC 4001

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 11 December 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 January 2015 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. At the time of decision an applicant must satisfy clause 820.223, which requires that they meet several public interest criteria, including Public Interest Criterion (PIC) 4001. To satisfy PIC 4001 for the grant of the visa, sub-regulation 2.03AA (1) requires that sub-regulation (2) be met unless sub-regulation (3) applies.

4. The delegate made the decision on the basis that evidence of a police clearance certificate or other similar documentation had not been provided as required to satisfy a criterion for the grant of the visa. Accordingly the applicant did not satisfy the prescribed criterion in paragraph 2.03AA. As subclass 820.223(1) (a) is not met the applicant did not meet clause 820.223.

5. On 22 May 2018 the Tribunal received an email submission from the applicant providing a document from the U.S. Department of Justice dated 8 May 2018. The document affirms the applicant has no prior arrest data. 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. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

   DECISION

7. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

   ·cl.820.221. of Schedule 2 to the Regulations

   Mary Urquhart
   Member