Diaz (Migration)

[2022] AATA 3874

Diaz (Migration) [2022] AATA 3874 (18 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Christopher Diaz

CASE NUMBER:  2203767

HOME AFFAIRS REFERENCE(S):          BCC2021/1534778

MEMBER:Justine Clarke

DATE:18 October 2022

PLACE OF DECISION:  Melbourne

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)(a)

Statement made on 18 October 2022 at 1:54pm

CATCHWORDS

MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – criminal history – United States clearance document 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 on 11 March 2022 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. On 4 August 2021, the applicant applied for the visa. 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, cl 461.223 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. Therefore, the applicant is required to satisfy the criterion in reg 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. 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).

5. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

6. The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate refused to grant the visa on the basis that the applicant did not meet reg 2.03AA because reg 2.03AA(2)(a) was not met. The decision stated that the applicant had not provided a police certificate or other statement from an appropriate authority in the United States of America, a country which the applicant had claimed to have lived for a cumulative period of 12 months or more, over the last 10 years, since turning 16 years of age. In addition, the delegate found that reg 2.03AA(3) did not apply because the applicant had not provided any claims or evidence to satisfy the delegate that it was not reasonable for the applicant to provide the requested evidence. The primary decision is silent as to whether the Department had requested the applicant to provide a completed approved Form 80 and thus whether reg 2.03AA(2)(b) had or had not been satisfied.

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, at the time of this decision, 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 primary decision states that, as at 11 March 2022, which is when the delegate made the refusal decision, the applicant had not provided police certificates from the United States pursuant to the Department’s written request of 27 January 2022.

10. On 16 March 2022, the applicant applied to the Tribunal for review of the primary decision. That same day, he submitted a copy of his clearance document issued by the United States Federal Bureau of Investigation on 11 March 2022. The applicant submitted other documents and evidence on that day also, including a signed statement from his partner Nitasa Samountry. Amongst other things, the statement drew the Tribunal’s attention to the fact that she and her partner had been married for nine years and that a child of the relationship was born in the later part of 2021.

11. Following constitution to the presiding Member on 7 October 2022, the Tribunal reviewed the evidence before it. The Tribunal finds that the applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

    Conclusion

12. Based on the above findings, the applicant meets reg 2.03AA(2)(a).

13. The Tribunal notes that, if the Department has requested the applicant to provide a completed approved Form 80, he will need to provide the completed approved Form 80 to the Department before a decision maker can be satisfied that he meets reg 2.03AA(2) in its entirety.

    decision

14. 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)(a)

    Justine Clarke
    Member