KHOSLA (Migration)

[2022] AATA 97

KHOSLA (Migration) [2022] AATA 97 (10 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs DEEPIKA KHOSLA

REPRESENTATIVE:  Ms USHASS PANICKER (MARN: 0324658)

CASE NUMBER:  2117089

HOME AFFAIRS REFERENCE(S):          BCC2019/4546280

MEMBER:Brendan Darcy

DATE:10 January 2022

PLACE OF DECISION:  Melbourne

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 10 January 2022 at 2:17pm

CATCHWORDS

MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – criminal history – Police certificates from Australia and India 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 9 September 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, clause 461.223 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. 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 15 November 2021 on the basis that the applicant did not meet reg 2.03AA because had not provided a police clearance certificate or statement provided by an appropriate authority in Australia and in the Republic of India (India).

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. When the applicant lodged this visa application, he did not provide a police check from either Australia or India where the applicant had lived for a per period of 12 months or mor,3 over the last ten years, since turning sixteen years of age.

9. On 5 October 2021, the applicant received an email which requested further information, namely current police certificates from India and Australia. Neither the applicant nor anyone on the applicant’s behalf responded this request.

10. Due to the applicant’s unresponsiveness, the delegate proceeded to refuse the visa on 15 November 2021. The applicant validly applied to have the refusal decision reviewed by the Tribunal on 19 November 2021.

11. On 23 November 2021, the Tribunal received a copy of the applicant’s police certificate issued by the Australian Federal Police issued 16 November 2021.

12. On 6 January 2022, the Tribunal received a copy of the applicant’s police certificate issued by the India’s Ministry of External Affairs issued on 22 December 2021.

13. The Tribunal is satisfied that the applicant has provided statements from the appropriate authorities, as requested, and therefore meets reg 2.03AA(2)(a).

14. Based on this information, no scheduled hearing was required to reach a favourable decision in this matter.

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

    DECISION

16. 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).

    Brendan Darcy
    Member