Kaur (Migration)

[2023] AATA 2969

Kaur (Migration) [2023] AATA 2969 (4 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Manpreet Kaur

REPRESENTATIVE:  Mr Natale Menniti (MARN: 1066082)

CASE NUMBER:  2106334

HOME AFFAIRS REFERENCE(S):          BCC2019/2704258

MEMBER:Meena Sripathy

DATE:4 September 2023

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 04 September 2023 at 1:02pm

CATCHWORDS

MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – criminal history – police clearances and Personal Particulars for Character Assessment provided upon review – decision under review remitted     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 461.223; Schedule 4, Public Interest Criterion 4001; r 2.03

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 23 May 2019. 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.

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.461.223 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 among other criteria. 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 visa on 11 May 2021 on the basis that the applicant did not meet reg 2.03AA because the applicant was requested to provide further information under r.2.03AA but did not respond to the request.

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 and a completed Form 80.

   Has the applicant provided a statement from an appropriate authority?

8. On 24 February 2021 the Department sent the applicant a request for further information, which included a request for a current police certificate from Australia and from each country where they had lived for a total of 12 months or more in the last 10 years. As at the time of the delegate’s decision the applicant had not provided the Malaysian document.

9. On 31 May 2021 the applicant provided the Tribunal an Indian police clearance dated 13 May 2021 and 14 July 2023 the applicant provided the Tribunal an Australian Police Certificate dated 13 July 2023.

10. On the evidence before it, the Tribunal finds the applicant has provided the statements from an appropriate authority as requested and therefore meets reg 2.03AA(2)(a).

    Has the applicant provided a completed approved Form 80?

11. The Department’s request on 24 February 2021 also included a request for a Personal Particulars for Character Assessment (Form 80). 

12. On 14 July 2023 the applicant provided the Tribunal a Personal Particulars for Character Assessment (Form 80). 

13. The applicant has provided a completed approved Form 80 and therefore meets reg 2.03AA(2)(b).

    Conclusion

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

    DECISION

15. 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).

    Meena Sripathy
    Member