Gipper (Migration)

[2022] AATA 1483

Gipper (Migration) [2022] AATA 1483 (22 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Aimee Lois Gipper

CASE NUMBER:  2201053

HOME AFFAIRS REFERENCE(S):          BCC2020/1328680

MEMBER:Peter Vlahos

DATE:22 March 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)

This Statement was made on 22^nd March 2022 at 7.44AM

CATCHWORDS

MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary)) – criminal history criterion – statement from home country provided to tribunal – no disclosable court outcomes – 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 461.223, 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 New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 3 April 2020. 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: r.2.03AA(1). In this case, 461.223 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 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 24 January 2022 on the basis that the applicant did not meet r.2.03AA because she had not provided an Australian Federal Police Check despite having been requested to do so on 9 December 2021.

6. The applicant seeks review of this decision.

7. No hearing was held in this case because the Tribunal determined it was able to make a favourable decision on the materials before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Relevant law

8. One of the criteria for the grant of a Subclass 461 visa is cl.461.223 which requires that the applicant meets Public Interest Criteria including PIC 4001. Where a person is required to satisfy PIC 4001 for the grant of a visa, there are additional criteria prescribed under r.2.03AA that must be met for the grant of visa. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s character and criminal history. 

9. Regulation 2.03AA(1) states that, in addition to the criteria prescribed by Regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or PIC 4002 for the grant of a visa, the criterion in sub regulation (2) is prescribed.

10. Regulation 2.03AA(2) provides that ifif the Minister has requested the following documents or information, the person has provided the documents or information:

    (a)  a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

    (b)  a completed approved form 80.

    Does the applicant meet Regulation 2.03AA?

11. Although the delegate found that the applicant did not satisfy cl.461.223, this finding appears to have been made on the basis that as the applicant failed to provide the police certificate and did not meet r.2.03AA, which was necessary for an assessment of PIC 4001.

12. Mrs Gipper submitted a certified copy of a US Department of Justice, Federal Bureau of Investigations Certificate dated 22 February 2022 which shows no disclosable court or criminal outcomes.

13. The Tribunal is satisfied that the Minister requested a statement provided by an appropriate authority in a country where a person resides, or has resided, which provides evidence about whether or not the person has a criminal history. The Tribunal is satisfied that the applicant has now provided to the Tribunal copies of the AFP certificates. A completed form 80 appears on the Departmental file. The Tribunal is satisfied that the applicant meets r.2.03AA(2) and therefore meets r.2.03AA.

14. Although the delegate found that the applicant did not satisfy cl.461.223, this finding appears to have been made on the basis that as the applicant failed to provide the police certificate and did not meet r.2.03AA, which was necessary for an assessment of PIC 4001. As the applicant has provided the police certificate, the delegate is now able to assess whether the applicant meets PIC 4001 for the purposes of cl.461.223.

15. The Tribunal considers the appropriate course of action is to remit the application to the Minister to undertake consideration of whether the applicant meets PIC 4001 for the purposes of cl.461.223 and the remaining criteria for the grant of a Subclass 189 visa.

    DECISION

16. 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).

    Peter Vlahos
    Member