Leclair (Migration)

[2018] AATA 1395

Leclair (Migration) [2018] AATA 1395 (9 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr James Albert Leclair

CASE NUMBER:  1620939

DIBP REFERENCE(S):  BCC2016/1935517

MEMBER:Kira Raif

DATE:9 April 2018

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 09 April 2018 at 12:16pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Police certificate – Penal certificate provided

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA, Schedule 2 cl 820.223, Schedule 4 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 (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Canada, born in 1942. He applied for the visa on 2 June 2016. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.223 because the applicant did not produce relevant police clearance certificate and the delegate was not satisfied the applicant met the character requirements. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the materials before it.

   Relevant law

4. 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.

5. 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 PIC4001. The applicant is therefore required to satisfy the criterion in r.2.03AA(2).

6. 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.

   Has the applicant provided a statement from an appropriate authority?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the delegate wrote to the applicant requesting him to provide a police clearance certificate from Canada. It appears the applicant failed to provide his police clearance certificates and as a result, his application was refused.

8. The applicant has provided to the Tribunal his penal certificate from Canada. The certificate does not indicate any prior convictions or criminal data. Although the Certificate is now more than 12 months old, the Tribunal is mindful that the applicant has not departed Australia since that time.

9. The Tribunal is satisfied that the Minister requested a statement provided by an appropriate authority in a country where a person resides, or has resided, that provides evidence about whether or not the person has a criminal history. The Tribunal is satisfied that the applicant has now provided to the Tribunal a copy of the relevant penal certificate. A completed form 80 appears on the Departmental file. The Tribunal is satisfied that the applicant meets r.2.03AA(2).

10. Although the delegate found that the applicant did not satisfy cl.820.223, this finding appears to have been made on the basis that as the applicant failed to provide the police certificate and did not meet r.2.03AA, which was necessary for an assessment of PIC 4001. As the applicant has provided the relevant police certificate, the delegate is now able to assess whether the applicant meets PIC 4001 for the purposes of cl.820.223.

11. The Tribunal considers the appropriate course of action is to remit the application to the Minister to undertake consideration of whether the applicant meets PIC 4001 for the purposes of cl.820.223 and the remaining criteria for the grant of a Partner visa.

    Conclusion

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

    DECISION

13. 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).

    Kira Raif
    Senior Member