Laqua (Migration)

[2022] AATA 96

Laqua (Migration) [2022] AATA 96 (10 January 2022)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Simone Laqua

CASE NUMBER:  2113287

HOME AFFAIRS REFERENCE(S):          BCC2018/2515414

MEMBER:Brendan Darcy

DATE OF DECISION:  10 January 2022

DATE CORRIGENDUM

SIGNED:12 January 2022

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

·            Paragraph 8 is deleted and replaced with the following:

At the time of application, the applicant did not provide a police check from Germany. While it appears the applicant had travelled extensively, they had not spent twelve or more months cumulatively in any other jurisdiction in the ten years prior to lodging the application.

·            In paragraph 12 a space should separate ‘October’ and ‘2021’ in the first sentence.

Brendan Darcy
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Simone Laqua

CASE NUMBER:  2113287

HOME AFFAIRS REFERENCE(S):          BCC2018/2515414

MEMBER:Brendan Darcy

DATE:10 January 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:

·Regulation 2.03AA(2)

Statement made on 10 January 2022 at 11:24am

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – criminal history – German Police certificate provided upon review – decision under review remitted   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.223; 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 Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 4 July 2018. The criteria for a Partner (Residence) (Class BS) 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 820.223 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 27 September 2021 on the basis that the applicant did not meet reg 2.03AA because the applicant had not provided a police clearance certificate or statement provided by an appropriate authority in the Federal Republic of Germany (Germany).

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, the applicant did not provide a police check from Australia or Indonesia, where the applicant had lived in the for a cumulative period of twelve months or more, over the last ten years, since turning sixteen years of age.

9. After assessing the application for a Subclass 820 visa, a delegate on behalf of the Minister sent the applicant emails on 21 December 2020, 18 February 2021 and 19 April 2020, requesting further information, which included a request for police certificates from Germany. A final requires was sent on 19 August 2021.

10. The applicant did not respond to these requests.

11. Due to the applicant’s unresponsiveness, the delegate proceeded to refuse the visa on 27 September 2021. The applicant validly applied to have the refusal decision reviewed by the Tribunal on 30 September 2021.

12. On 9 December 2021, the Tribunal received a copy of the applicant’s police certificate issued by the German Federal Office of Justice issued 28 October2021. A certified translation of the document was also forwarded.

13. The Tribunal is satisfied that the applicant has provided a statement 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 Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:

    ·Regulation 2.03AA(2).

    Brendan Darcy
    Member