Geldenhuys (Migration)

[2022] AATA 1480

Geldenhuys (Migration) [2022] AATA 1480 (14 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joshua Geldenhuys

REPRESENTATIVE:  Miss Dalila Machado Medeiros Allen (MARN: 2014135)

CASE NUMBER:  2110438

HOME AFFAIRS REFERENCE(S):          BCC2020/1652883

MEMBER:Moira Brophy

DATE:14 January 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

·Regulation 2.03AA(2).

Statement made on 14 January 2022 at 10:05am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – criminal history statement – statement from appropriate authority provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), r 2.03AA(2), Schedule 2, cl 600.213(1), 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 Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 31 May 2020. The criteria for a Visitor (Class FA) 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, 600.213(1) 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 July 2021 on the basis that the applicant did not meet reg 2.03AA because he had not provided evidence as to whether or not he had a criminal history.

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. The applicant has provided a statement from an appropriate authority to the Tribunal and therefore meets reg 2.03AA(2)(a). If it is not reasonable – whether the requirement should be waived in the circumstances.

   Conclusion

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

   DECISION

10. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

    ·Regulation 2.03AA(2).

    Moira Brophy
    Member