Kacilala (Migration)

[2021] AATA 2340

Kacilala (Migration) [2021] AATA 2340 (17 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Kesaia Waqanivere Kacilala

CASE NUMBER:  2107119

HOME AFFAIRS REFERENCE(S):           CC2017/4321414

MEMBER:Kira Raif

DATE:17 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

·Regulation 2.03AA(2)

Statement made on 17 June 2021 at 5:27pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Family Relationship (Temporary)) – criminal history statements – statement from home country provided to department – statement from Australia provided to tribunal – no disclosable outcomes – decision under review remitted

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

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 New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 November 2017. The delegate refused to grant the visa on 11 May 2021 on the basis that the applicant did not meet reg 2.03AA because the applicant did not provide the penal certificates.

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

   Relevant law

4. The criteria for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) 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.

5. 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.  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).

   Has the applicant provided a statement from an appropriate authority?

6. The primary decision record indicates that the delegate wrote to the applicant requesting her to provide police certificates from Fiji and Australia. The Departmental file indicates that  the applicant did provide her Fijian police certificate but not the Australian one and the delegate was not satisfied the applicant met r. 2.03AA(2)(b).

7. The applicant now provided to the Tribunal the AFP certificate. It remains valid and shows no disclosable outcomes. As the applicant has provided a statement from an appropriate authority, she therefore meets reg 2.03AA(2)(a).

   Conclusion

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

   DECISION

9. The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

   ·Regulation 2.03AA(2).

   Kira Raif
   Senior Member