Lou (Migration)

[2019] AATA 4665

Lou (Migration) [2019] AATA 4665 (18 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ion San Lou

CASE NUMBER:  1922154

DIBP REFERENCE(S):  BCC2018/45652

MEMBER:Kira Raif

DATE:18 October 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 18 October 2019 at 9:59am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Public Interest Criterion 4001 – authorised criminal clearance certificate not provided to delegate – Canadian police certificate provided to Tribunal – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 2, cl 820.211(2), 802.221, Schedule 3, criterion 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). The applicant applied for the visa on 4 January 2018.

2. 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).

3. 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.

4. The delegate refused to grant the visa on 9 August 2019 on the basis that the applicant did not meet r.2.03AA because the applicant failed to provide the appropriate police clearance certificate from Canada.

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

   Has the applicant provided a statement from an appropriate authority?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the delegate wrote to the applicant inviting him to provide the police clearance certificate from Canada. The applicant provided one from the local area but not the one by the RCMP, as requested and the delegate was not satisfied that the applicant met r. 2.03 and PIC 4001.

7. In September 2019 the applicant provided to the Tribunal a copy of his RCMP certificate. The Tribunal is satisfied that the applicant has provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

   Conclusion

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

   DECISION

9. 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