Kirk (Migration)

[2021] AATA 1912

Kirk  (Migration) [2021] AATA 1912 (4 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Megan Annie  Kirk

CASE NUMBER:  2104704

HOME AFFAIRS REFERENCE(S):          BCC2020/1714340

MEMBER:Nicole Burns

DATE:4 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

·Regulation 2.03AA(2)

Statement made on 04 May 2021 at 1:31pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – criminal history – police certificate provided upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 600.213; 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 Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 10 June 2020. The criteria for a Visitor (Class FA) 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.600.213(1) 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 7 April 2021 on the basis that the applicant did not meet reg 2.03AA because she did not provide a statement from an appropriate authority in the UK that provides evidence about whether or not she has a criminal history, despite being requested in writing to do so. 

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

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   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. 

   Has the applicant provided a statement from an appropriate authority?

9. According to information contained in the delegate’s decision record, on 4 December 2020 and 1 February 2021 the Department requested in writing the applicant provide a statement by an appropriate authority in the UK that provides evidence about whether or not she has a criminal history.  However by the time of the delegate’s decision she had failed to provide the statement.

10. On review the applicant submitted to the Tribunal a copy of a police certificate (UK) dated 23 December 2020 which states ‘NO TRACE’ in respect to ‘Summary of convictions and reprimands/warnings/cautions/impending prosecutions/under investigations held on UK police databases and disclosed in accordance with the ACRO stepdown model’.  In a letter attached to the certificate from the Head of ACRO Criminal Records Office, UK it is stated that ‘NO TRACE’ means she does not have any convictions, cautions, final warnings or reprimands.

11. The applicant has provided a statement from an appropriate authority (in the UK) in relation to whether or not she has a criminal history and therefore meets reg 2.03AA(2)(a).

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

    DECISION

13. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

    ·Regulation 2.03AA(2).

    Nicole Burns
    Member