Holmes (Migration)

[2017] AATA 2104

Holmes (Migration) [2017] AATA 2104 (27 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Daisy Victoria Holmes

CASE NUMBER:  1610970

DIBP REFERENCE(S):  CLF2015/58850

MEMBER:Kira Raif

DATE:27 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·Regulation 2.03AA. 

Statement made on 27 October 2017 at 3:17pm

CATCHWORDS

Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – Public Interest Criterion 4001 – Character and criminal history – Police clearance certificates

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cls 835.223, 835.235, r 2.03

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 Immigration on 30 June 2016 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 September 2015. The delegate refused to grant the visa on the basis that cl.835.235 was not met because the delegate was not satisfied the applicant met the Public Interest Criterion (PIC) 4001 and r. 2.03AA. The applicant seeks review of this decision.

3. 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.

   Relevant law

4. One of the criteria for the grant of a Subclass 835 visa is cl.835.223 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. 

5. 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 subregulation (2) is prescribed.

6. 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?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the delegate requested the applicant to provide police clearance certificates from the UK and Australia. It appears the applicant failed to provide her police clearance certificates and as a result, the visa application was refused.

8. The applicant has now provided to the Tribunal her penal certificates from the UK and Australia. The certificates state that there are no reportable outcomes.

9. 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, that 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 UK and 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.

10. Although the delegate found that the applicant did not satisfy cl.835.223, 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.835.223.

11. 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.835.223 and the remaining criteria for the grant of a Subclass 835 visa.

    DECISION

12. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·Regulation 2.03AA. 

    Kira Raif
    Senior Member