Fouracres (Migration)

[2024] AATA 61

Fouracres (Migration) [2024] AATA 61 (2 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lee Roy Fouracres

REPRESENTATIVE:  Ms Ashnita Goundar

CASE NUMBER:  2313402

HOME AFFAIRS REFERENCE(S):          BCC2017/3188563

MEMBER:Brendan Darcy

DATE:2 January 2024

PLACE OF DECISION:  Melbourne

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 02 January 2024 at 3:40pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal history – AFP certificate expired before finalisation of visa – new certificate provided to tribunal – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(1), (2)(a), 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 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).

2. The applicant applied for the visa on 3 September 2017. The criteria for a Partner (Temporary) (Class UK) 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 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 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. 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 23 August 2023 on the basis that the applicant did not meet reg 2.03AA because the applicant had not provided a police clearance certificate or statement provided by an appropriate authority in Australia.

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 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?

8. After assessing the visa application, a delegate on behalf of the Minister sent the applicant an email on 6 February 2018, requesting further information, which included a request for police clearance certificate from Australia and the United Kingdom of Great Britain and Northern Ireland (UK).

9. The applicant provided a copy of a UK police certificate issued on 6 March 2018 and a copy of a National Police Certificate from the Australian Federal Police issued on 18 May 2017.

10. Because the Australian certificate was not valid after the date 18 May 2018, its validity was set to expire before the finalisation of the partner visa application. On 11 December 2018, the delegate sent a request letter for an updated police clearance from Australia. Further requests were sent in January 2019, March 2019 and February 2023. 

11. With no responses to these requests, the delegate proceeded to refuse the visa on 23 August 2023 on the basis of a lack of compliance with regulation 2.03AA(2)(a). The

12. The applicant validly applied to have the refusal decision reviewed by the Tribunal on 31 August 2023.

13. 8 November 2011, the Tribunal received a copy of the applicant’s police clearance certificate issued by the Australian Federal Police on 1 November 2023, along with an updated Form 80 and a statutory declaration signed by the applicant on 8 November 2023.

14. With no reasons to the contrary, the Tribunal is satisfied that the applicant has provided statements from the appropriate authorities, as requested, and therefore meets reg 2.03AA(2)(a).

15. Based on this information, no scheduled hearing was required to reach a favourable decision in this matter.

16. On the basis of the above findings, the applicant meets reg 2.03AA(2).

    DECISION

17. 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).

    Brendan Darcy
    Member