Gwatidzo (Migration)

[2023] AATA 3138

Gwatidzo (Migration) [2023] AATA 3138 (18 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kudzai Frank Gwatidzo

REPRESENTATIVE:  Mr Davinder Bhogal

CASE NUMBER:  2312889

HOME AFFAIRS REFERENCE(S):          BCC2014/3037925

MEMBER:David Crawshay

DATE:18 September 2023

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 criterion for a Subclass 820 visa:

·Regulation 2.03AA(2)

Statement made on 18 September 2023 at 11:55am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal history – Australian Federal Police National Police Check 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 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). The applicant applied for the visa on 7 November 2014. 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.

2. 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, cl.820.223(1) of Schedule 2 of the Regulations requires an applicant to meet PIC 4001 and 4002. That applicant is therefore required to satisfy the criterion in r.2.03AA(2). Regulation 2.03AA(2)(a) requires that, if requested, that 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, that applicant has provided a completed approved Form 80. The Tribunal may waive the requirement in r.2.03AA(2)(a) if it is not reasonable for that applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for an applicant to provide a completed Form 80.

3. The delegate refused to grant the visa on 3 August 2023 on the basis that the applicant did not meet reg 2.03AA because he had not provided an Australian Federal Police certificate.

4. On 31 August 2023, the applicant’s representative submitted a National Police Check from the Australian Federal Police dated 8 May 2023 in respect of the applicant. The Tribunal is satisfied that the certificate is genuine and current and that it is therefore valid for the purposes of r.2.03AA(2)(a). The applicant has not been requested to provide a police clearance certificate from Zimbabwe.

5. In light of the above, the applicant meets r.2.03AA(2)(a) and because he has already provided a completed approved Form 80, he satisfies r.2.03AA(2)(b).

6. Regulation 2.03AA(2) is satisfied in its entirety.

   DECISION

7. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 820 visa:

   ·Regulation 2.03AA(2).

   David Crawshay
   Member