Koraca (Migration)

[2019] AATA 1562

Koraca (Migration) [2019] AATA 1562 (7 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Robin Koraca

CASE NUMBER:  1903650

DIBP REFERENCE(S):  BCC2017/4242211

MEMBER:Hugh Sanderson

DATE:7 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·Regulation 2.03AA(2)

Statement made on 07 March 2019 at 12:39pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – subclass 820 – applicant provided valid police certificates – applicant meets r.2.03AA – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA, Schedule 2, cl 820.223

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 (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 November 2017. The criteria for a Partner (Temporary) (Class UK) 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, cl.820.223 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. 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 12 February 2019 on the basis that the applicant did not meet r.2.03AA because the applicant failed to provide valid police certificates from Australia and the United States of America.

6. The applicant provided to the Tribunal a certificate provided from the US Department of Justice – Federal Bureau of Investigation dated 12 – 05 – 2017 (5 December 2017) noting a search of the fingerprints provided by the applicant has revealed no prior arrest data at the FBI.

7. The applicant provided a National Police Certificate issued by the AFP dated 8 October 2018 certifying that there were no disclosable Court outcomes recorded against the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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?

10. The Department requested the applicant provide the necessary police certificates from the relevant Australian and United States authorities. The applicant has now provided those certificates to the Tribunal and they state that the applicant does not have any disclosable Court outcomes recorded against her.

11. As the applicant has now provided the statements from an appropriate authority she therefore meets r.2.03AA(2)(a).

12. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

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

    DECISION

14. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·Regulation 2.03AA(2).

    Hugh Sanderson
    Member