Czaja (Migration)

[2020] AATA 2730

Czaja (Migration) [2020] AATA 2730 (29 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zenon Czaja

CASE NUMBER:  1822032

DIBP REFERENCE(S):  BCC2016/3381733

MEMBER:Justin Owen

DATE:29 June 2020

PLACE OF DECISION:  Sydney

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

·Regulation 2.03AA(2)

Statement made on 29 June 2020 at 11:55am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – criminal history statement – certificates from AFP and home country provided to tribunal – no disclosable court outcomes – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA(2), Schedule 2, cl 820.223, 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 Immigration 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 11 October 2016. The criteria for a Partner (Temporary) (Class UK) 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.

3. 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, 820.223 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).

4. 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.

5. The delegate refused to grant the visa on 16 July 2018 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide an Australian Federal Police Certificate, a Polish Police clearance certificate, a Polish military discharge certificate  as well as a Form 80.  Accordingly, the applicant did not meet the criteria for the grant of the visa and their application was refused.

   Information to the Tribunal 

6. The applicant provided to the Tribunal an Australian Federal Police Certificate dated 30 August 2018 and a document from the Information Bureau of the Ministry of Justice in Poland dated 17 August 2018.  Each stated that there were no disclosable court outcomes or criminal record against the applicant’s name. The applicant also provided a military service record from the Polish Ministry of Defence that confirmed his discharge in 1986.

7. The applicant also provided to the Tribunal a copy of his completed Form 80 dated 28 August 2018.   

8. The Tribunal has proceeded to a decision without the need for a hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 and a completed Form 80.

    Has the applicant provided a statement from an appropriate authority?

11. At the time of the decision of the Department, the applicant had not supplied the appropriate statement from the Australian Federal Police or the Polish authorities.  He had also failed to supply a completed Form 80.  The applicant has now provided a statement from the Australian Federal Police dated 30 August 2018 stating that the applicant has no disclosable court outcomes.  The applicant has also provided a statement from the Ministry of Justice in Poland dated 17 August 2018 stating that the applicant has no criminal record or disclosable court outcomes.

12. As the applicant has now provided a statement from each of the appropriate authorities the applicant meets r.2.03AA(2)(a).

13. As the applicant has now provided a completed approved Form 80 dated 28 August 2018, the applicant meets r.2.03AA(2)(b).

    Conclusion

14. On the basis of the above findings, the applicant meets r.2.03AA(2).

    DECISION

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

    ·Regulation 2.03AA(2).

    Justin Owen
    Senior Member