Harper (Migration)

[2019] AATA 3001

Harper (Migration) [2019] AATA 3001 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Virginia Harper

CASE NUMBER:  1901226

DIBP REFERENCE(S):  BCC2016/2500451

MEMBER:Moira Brophy

DATE:3 June 2019

PLACE OF DECISION:  Sydney

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 03 June 2019 at 3:37pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – police certificate provided – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15, 2.03AA(2), Schedule 2, cl 820.223, PIC 4001

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in the present case is whether the visa applicant, Mrs Virginia Harper meets public interest criteria (PIC) 4001 referred to in cl.820.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of a Partner (Residence) (Class BS) Subclass 820 visa.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

3. The applicant applied for the visa on 28 July 2016. The criteria for a Partner (Temporary) (Class UK) visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

4. On 14 September 2017 the department wrote to Mrs Harper and requested additional information. Partial documentation was received on 4 October 2017. A further request for outstanding documentation was sent on 5 October 2017 and on 13 January 2018.

5. On 16 January 2019 the delegate refused to grant the visa on the basis that the applicant had not provided a police certificate or other statement provided by an appropriate authority in USA, being the country in which the applicant had previously resided. That document was required as it provides evidence about whether or not the applicant has a criminal history. Since the document had not been provided the visa applicant was not able to satisfy the prescribed criterion in paragraph 2.03AA (2 all) and accordingly she did not meet the criterion for the grant of a Partner (Residence)(Class BS) (Subclass 820) visa.

6. The applicant seeks review of this decision.

7. No hearing was held in this case because he 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 801 visa is cl.820.223 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 if 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.820.223, 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 Harper submitted a certified copy of a U.S. Department of Justice, Federal Bureau of Investigations fingerprint submission dated 4 February 2019. 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 relevant certificate. The Tribunal is satisfied that the applicant meets r.2.03AA(2) and therefore meets r.2.03AA. In making that finding the Tribunal was mindful there was evidence of previous convictions. The Tribunal has not considered whether the applicant is able to meet PIC 4001.

13. Although the delegate found that the applicant did not satisfy cl.820.223, 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.820.223.

14. 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.820.223 and the remaining criteria for the grant of a Subclass 801 visa.

    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).

    Moira Brophy
    Member