Johnston (Migration)

[2023] AATA 4227

Johnston (Migration) [2023] AATA 4227 (4 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adam Micah Johnston

CASE NUMBER:  2214080

HOME AFFAIRS REFERENCE(S):          BCC2019/4943286

MEMBER:David Crawshay

DATE:4 August 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:

·r.2.03AA(2).

Statement made on 04 August 2023 at 9:31am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – character test – statement from an appropriate authority – “Criminal Record Certificate” issued by the Ministry of Justice, Criminal Record Information System in Italy – Australian Federal Police (AFP) National Police Check – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 820.223

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).

2. The applicant applied for the visa on 2 October 2019. 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.

3. 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 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 r.2.03AA(2). 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.

4. The delegate refused to grant the visa on 9 September 2022 on the basis that the applicant did not meet r.2.03AA because he had not provided a statement from an appropriate authority in Italy.

5. On 19 October 2022, the applicant provided a document whose title is translated as “Criminal Record Certificate” issued by the Ministry of Justice, Criminal Record Information System in Italy dated 20 September 2022. On 17 April 2023, the applicant submitted a National Police Check issued by the Australian Federal Police dated 14 April 2023.

6. The Tribunal is satisfied that the aforementioned police checks are genuine and current. It therefore accepts that they are valid for the purposes of r.2.03AA(2)(a). The applicant had previously provided an FBI Criminal Report dated 23 September 2019, and the Tribunal is satisfied that the document is current based on evidence showing that the applicant has not travelled to the USA since this time.

7. In light of the above, the applicant meets r.2.03AA(2)(a) and because he had already submitted a Form 80 dated 2 October 2019, he meets r.2.03AA(2)(b). Regulation 2.03AA(2) is satisfied in its entirety.

   DECISION

8. 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:

   ·r.2.03AA(2).

   David Crawshay
   Member