Kaur (Migration)

[2020] AATA 5875

Kaur (Migration) [2020] AATA 5875 (9 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Pawanjit Kaur

VISA APPLICANT:  Mr Bhagwan Singh

CASE NUMBER:  1815659

DIBP REFERENCE(S):  OSF2012/087609

MEMBER:Russell Matheson

DATE:9 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Contributory Parent (Temporary) (Class UT) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 173 visa:

·Regulation 2.03AA(2)

Statement made on 09 November 2020 at 11:43am

CATCHWORDS
MIGRATION – Contributory Parent (Temporary) (Class UT) visa – Subclass 173 (Contributory Parent (Temporary)) – character test – statement from an appropriate authority – National Police Certificate from the Australian Federal Police – no disclosable court outcomes – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 4, PIC 4001

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 Contributory Parent (Temporary) (Class UT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 March 2012. The criteria for a Contributory Parent (Temporary) (Class UT) 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, r.2.03(2) 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 2 May 2018 on the basis that the applicant did not meet r.2.03AA because evidence of criminal history was not provided as required to satisfy a criterion for the grant of the visa under the Regulations. Considering the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

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.

8. On 21 October 2020, The Tribunal received a copy of a National Police Certificate from the Australian Federal Police, Co-ordinator Criminal Records, certifying that there are no disclosable court outcomes recorded against the name of Bhagwan Sing, born on 9 September 1957, in the records of Australian Federal Police and the police in all Australian states and territories as at 23 September 2020.

9. Considering the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

10. Based on the above findings, the applicant meets r.2.03AA(2).

    DECISION

11. 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).

    Russell Matheson
    Member