Gilmer (Migration)

[2024] AATA 2841

Gilmer (Migration) [2024] AATA 2841 (31 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Dawn Anne Gilmer

CASE NUMBER:  2410725

HOME AFFAIRS REFERENCE(S):          BCC2017/2908705

MEMBER:Justine Clarke

DATE:31 July 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)(a).

Statement made on 31 July 2024 at 5:00pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal history – Spanish police clearance provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.223; 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 2 May 2024 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. On 14 August 2017, the applicant applied for the visa. 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, cl 820.223 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 did not provide the Tribunal with a copy of the delegate’s refusal decision (the primary decision). Notwithstanding, the Tribunal is aware of the delegate’s reasons for refusing the visa because the presiding Member has reviewed a copy of the primary decision which is on the Department’s file. 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 Spain, a country which the applicant had claimed to live 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 2 May 2024, which is when the delegate made the refusal decision, the applicant had not provided a police clearance certificate from Spain pursuant to the Department’s requests, commencing with its written request predating 4 April 2018.

10. On 6 May 2024, the applicant applied to the Tribunal for the review of the primary decision.

11. Subsequently, the applicant submitted a copy of the applicant’s Spanish police clearance dated 10 June 2024 (and certified English translation).

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

    Conclusion

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

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

    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)(a).

    Justine Clarke
    Member