Khan (Migration)

[2019] AATA 3443

Khan (Migration) [2019] AATA 3443 (25 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Maryam Khan

CASE NUMBER:  1910694

DIBP REFERENCE(S):  CLF2019/19799

MEMBER:Russell Matheson

DATE:25 July 2019

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 25 July 2019 at 8:28am

CATCHWORDS

MIGRATION – Partner (Migrant) (Class BC) – Subclass 100 (Spouse) – Criminal History statement – statement provided – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 r 2.03AA, Public Interest Criterion (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 Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 August 2014. 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, r. 2.03(2)(a) 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.

5. 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.

6. The delegate refused to grant the visa on 31 January 2019 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. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. On 18 July 2019, 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 Maryam Khan, born on 14 August 1990, in the records of Australian Federal Police and the police in all Australian states and territories as at 26 April 2019.

10. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

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

    DECISION

12. 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