Manu (Migration)

[2023] AATA 406

Manu (Migration) [2023] AATA 406 (27 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sitiveni Manu

CASE NUMBER:  2209355

HOME AFFAIRS REFERENCE(S):          BCC2020/1292379

MEMBER:Linda Holub

DATE:27 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

·Regulation 2.03AA(2).

Statement made on 27 February 2023 at 12:14pm

CATCHWORDS

MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – criminal history – Australian Federal Police certificate and updated Tonga Police National Criminal Record Office Police Record Certificate provided upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 461.223; Schedule 4, Public Interest Criterion 4001; r 2.03AA

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 New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 March 2020. The criteria for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) 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 461.223 of Schedule 2 of the Regulations requires the applicant to meet PIC4001. The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

1. 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 10 June 2022 on the basis that the applicant did not meet reg 2.03AA because the applicant did not provide the requested police certificates from Australia and Tonga.

6.    On the evidence before it, the Tribunal considered it would be appropriate to make a favourable decision on the papers.

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

consideration of claims and evidence

8.    The issue in this case is whether the applicant has provided a statement by an appropriate authority.

Has the applicant provided a statement from an appropriate authority?

9.    The delegate noted that after assessing the visa application, a delegate of the Minister sent a letter by email on 30 December 2021 requesting further information, which included a request for police certificates from Australia and Tonga. On 4 January 2022 the applicant responded to the Department stating he was away on holidays and was working on providing the Australia and Tonga certificates. On 5 January 2022 a delegate responded to the applicant asking him to ensure evidence of the police check applications is provided within the prescribed period. On 4 February 2022 the applicant sent the Department an email providing a reference number for an Australian police certificate. The email stated the police certificate had been completed and would be dispatched the next business day. On 23 March the Department contacted the applicant via email and asked him to provide a copy of his Australia police certificate, and evidence that he has lodged a request for the Tonga police certificate. At the date of the Department’s decision the applicant has not responded to this request.   

1. On 14 July 2022 the applicant’s advisor provided the Tribunal with a copy of a Tonga Police National Criminal Record Office Police Record Certificate dated 24 June 2022 which certifies that the applicant has no criminal record or previous conviction filed in this office. He also provided was a copy of a certificate issued by the Australian Federal Police showing no disclosable court outcomes as at 18 March 2020. On 25 July 2022 the Tribunal wrote to the applicant’s advisor responding to the submission from 14 July 2022. The Tribunal noted that the Australian Federal Police certificate that had been provided did not meet the validity criteria as it was older than 12 months at the time the application for appeals was lodged.

2. On 22 August 2022 the applicant’s advisor submitted an updated certificate issued by the Australian Federal Police which shows no disclosable court outcomes recorded against the applicant as at 18 August 2022.

3. The applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

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

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

decision

1. The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

   ·Regulation 2.03AA(2).

Linda Holub
Member