JOSHI (Migration)

[2018] AATA 3656

JOSHI (Migration) [2018] AATA 3656 (2 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs KALYANI AJAYKUMAR JOSHI

CASE NUMBER:  1818177

DIBP REFERENCE(S):  BCC2018/3719407 OSF2012/055618

MEMBER:Linda Holub

DATE:2 August 2018

PLACE OF DECISION:  Sydney

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 02 August 2018 at 1:09pm

CATCHWORDS
Migration – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – Evidence of criminal history – Completed Disclosure certificate provided – Police Clearance Certificate provided – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65,
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2 cl 100.222

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 8 October 2012. 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. 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, clause 100.222 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in r.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 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.

5. The delegate refused to grant the visa on 12 June 2018 on the basis that the applicant did not meet r.2.03AA because the applicant had not provided a police certificate or other statement from an appropriate authority in Australia and India, being the countries in which she had resided in, that provide evidence about whether or not she has a criminal history.

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 Department sent the applicant an email on 25 November 2017 requesting further information including a request for a National Police Certificate issued by the Australian Federal Police (AFP) and a Police Clearance Certificate issued by the Indian Government.  The applicant did not respond to this request.  A second letter was sent after contact was made with her sponsor again requesting further information, including the two Certificates referred to.  At the date of the delegate’s decision, no response had been received.

9. The Tribunal is satisfied that the delegate made a request for the applicant to provide a Complete Disclosure certificate and a Police Clearance Certificate from an appropriate authority, which in this case is the AFP and the Indian Government, in the countries where the applicant resides or has resided: Australia and India. In the circumstances, the applicant has to provide the requested statement to meet the r.2.03AA.

10. On review, the Tribunal received a certified copy of a National Police Certificate - Complete Disclosure dated 13 June 2018 issued by the AFP. The certificate indicates that there are no disclosable court outcomes recorded against the applicant's name.  The Tribunal also received a certified copy of a Police Clearance Certificate issued by the Indian Government at the Consulate General of India, in Sydney, dated 18 June 2018.  It certifies that there is nothing adverse against the name of the applicant.

11. As the applicant has provided a statement from an appropriate authority she therefore meets r.2.03AA(2)(a).

    Conclusion

12. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

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

    DECISION

14. 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).

    Linda Holub
    Member