Hussaini (Migration)

[2022] AATA 1108

Hussaini (Migration) [2022] AATA 1108 (8 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nasiba Hussaini

VISA APPLICANT:  Mr Mohammad Barati

REPRESENTATIVE:  Mrs Libby Anne Hogarth (MARN: 9364758)

CASE NUMBER:  2119784

HOME AFFAIRS REFERENCE(S):          BCC2017/3404771

MEMBER:Steven Griffiths

DATE:8 February 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 visa:

·Regulation 2.03AA(2); and

·cl 309.225 of Schedule 2 to the Regulations.

Statement made on 08 February 2022 at 1:30pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – Police Certificate (UK) provided – no criminal history – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA(2), Schedule 2, cl 309.225

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 (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 September 2017. The criteria for a Partner (Provisional) (Class UF) 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 309.225 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. The applicant is therefore 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. 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 14 July 2021 on the basis that the applicant did not meet reg 2.03AA because a police certificate from the United Kingdom in all names the applicant is known by had not been supplied.  

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether 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?

8. The Tribunal notes the delegate made a request on 2/3/21 and 22/4/21 for the provision of a statement from a relevant authority in the United Kingdom that provides evidence about whether or not the person has a criminal history.

9. The Tribunal accepts that the parties provided to the Tribunal on 22/12/21 a Police Certificate (UK), dated 11/8/21, for the applicant in any name for which he has been known, confirming the applicant has no trace of any convictions and reprimands, warnings, cautions or impending prosecutions or under investigation recorded against him in the United Kingdom. 

10. The applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

    Conclusion

11. On the basis of the above findings, the applicant meets reg 2.03AA(2).

    DECISION

12. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 visa:

    ·Regulation 2.03AA(2); and

    ·cl 309.225 of Schedule 2 to the Regulations.

    Steven Griffiths
    Member