JONES (Migration)

[2023] AATA 1380

JONES (Migration) [2023] AATA 1380 (10 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss ELLIE JAYNE JONES
Master ALFIE RYAN EDWARDS

CASE NUMBER:  2306194

HOME AFFAIRS REFERENCE(S):          BCC2021/1886117

MEMBER:Kira Raif

DATE:10 May 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 801 visa:

·Regulation 2.03AA(2)

Statement made on 10 May 2023 at 9:08am

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – criminal history – Australian Federal Police certificate provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.223; Schedule 4, Public Interest Criterion 4001; r 2.03AA

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 applicants Partner (Residence) (Class BS) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 4 October 2021. The criteria for a Partner (Residence) (Class BS) 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. 820.223. of Schedule 2 of the Regulations requires the applicant to meet PIC4001. 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 visas on 28 April 2023 on the basis that the first named applicant (the applicant) did not meet reg 2.03AA because she did not provide her Australian police certificate.

6. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Has the applicant provided a statement from an appropriate authority?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in February 2022 the delegate wrote to the applicant requesting her to provide the police certificates from UK and Australia. Another request was made in May 2022. The primary decision record indicates that the applicant had provided the UK police certificate but not the Australian one. As a result, the delegate was not satisfied that the applicant met r. 2.03AA and cl. 820.223.

8. In her written submission to the Tribunal the applicant explains the reasons for not providing the Australian penal certificate and the reasons she cannot return to UK. The Tribunal acknowledges that evidence. The applicant also provided to the Tribunal a copy of the AFP certificate dated 2 May 2023 showing no disclosable court outcomes.

9. As the applicant has now provided a statement from an appropriate authority, the Tribunal finds that she meets reg 2.03AA(2)(a).

   Conclusion

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

    DECISION

11. The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 801 visa:

    ·Regulation 2.03AA(2).

    Kira Raif
    Senior Member