Iakovleva (Migration)

[2020] AATA 5413

Iakovleva (Migration) [2020] AATA 5413 (26 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tetiana Iakovleva

CASE NUMBER:  2004876

DIBP REFERENCE(S):  BCC2017/923250

MEMBER:C Morfuni

DATE:26 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:

·Regulation 2.03AA(2)

Statement made on 26 October 2020 at 4:26pm.

CATCHWORDS

MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – evidence of criminal history – Australian Federal Police certificate – decision under review remitted        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2; Schedule 4, Public Interest Criterion 4001; 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 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 March 2017. The criteria for a Partner (Migrant) (Class BC) 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.

3. The Tribunal’s decision has been made in accordance with the President’s Direction 8.2 which states As a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters.

4. The Applicant appointed a migration agent (representative) to represent her in this matter.

5. The Tribunal had before it the relevant legislation under the Migration Act 1958, the Migration Regulations 1994, the Department file and Tribunal file together with all information and submissions including the submission provided by the representative on 30 June 2020 provided by the applicant and her representative, including but not limited to Medicare related correspondence, marriage certificate dated 15 January 2016, identification documents including passport copy. The Tribunal has considered all of these matters in making its decision.

6. 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, PIC 4001 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 or 4002. The applicant is required to satisfy the criterion in r.2.03AA(2).

7. 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 r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80 unless the Minister is satisfied that it is not reasonable for the applicant to provide the statement.

8. The delegate refused to grant the visa on 26 February 2020 on the basis that the applicant did not meet r.2.03AA because she had not complied with Regulation 2.03AA(2)(a) requiring a statement from a relevant authority in a country where she resides or has resided that provides evidence about whether or not she has a criminal history.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 and/or a completed Form 80.

11. The delegate made a request for the applicant to provide a statement from an appropriate authority in a country where the applicant resides or has resided dated 3 December 2019, and the applicant provided the statement on 30 June 2020.

12. At the date of this decision, the evidence before the Tribunal indicates that on 30 June 2020 the applicant’s representative forwarded a general submission to the Tribunal attaching a copy certificate from the Australian Federal Police (AFP) dated 1 April 2020 which she indicated had been lodged with the Tribunal on 11 March 2020. The Tribunal was unable to verify such lodgement and has relied on the copy certificate attached with the submission lodged on 30 June 2020 as outlined above. The AFP certificate indicates that the applicant did not have a criminal history.

    Findings

13. The Tribunal finds that at the date of decision, the applicant has provided a statement from an appropriate authority in accordance with the Delegate’s request thereby complying with Regulation 2.03AA(2)(a) and PIC 4001.

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

    Conclusion

15. On the basis of the above findings, the applicant meets r.2.03AA(2).

    DECISION

16. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:

    ·Regulation 2.03AA(2).

    C Morfuni
    Member