Marshall (Migration)

[2022] AATA 2941

Marshall (Migration) [2022] AATA 2941 (17 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sheila Marshall

REPRESENTATIVE:  Mrs Teresa Cardona (MARN: 0640100)

CASE NUMBER:  2206064

HOME AFFAIRS REFERENCE(S):          BCC2020/2035224

MEMBER:David Barker

DATE:17 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

·PIC 4001 for the purposes of cl 461.223 of Schedule 2 to the Regulations

Statement made on 17 May 2022 at 2:05pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Family Relationship (Temporary)) – character test – statement from an appropriate authority – Australian National Police Certificate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 461.223; 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 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). The applicant applied for the visa on 4 August 2020. The delegate refused to grant the visa on 6 April 2022.

2. The delegate made the decision on the basis that evidence of criminal history was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   Consideration of claims and evidence

4. The issue in the present case is whether the applicant satisfies the character test.

5. The Department’s decision was made on the basis that the applicant did not provide a police certificate from Australia.  This meant that she did not satisfy cl.461.223 because she did not meet PIC 4001. Clause 461.223 provides amongst other things that an applicant satisfies various public interest criteria (PIC), including 4001. PIC 4001 requires the person to satisfy the character test and provides the following:

   4001  Either:

   (a) the person satisfies the Minister that the person passes the character test; or

   (b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

   (c) the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

   (d) the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

6. Where a person is required to satisfy PIC 4001 for the grant of a visa, additional criteria are prescribed under r.2.03AA that must be met for the grant of visa. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s character and criminal history.

7. Regulation 2.03AA provides:

   (1)   In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

   (2)   If the Minister has requested the following documents or information, the person has provided the documents or information:

   (a)   a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

   (b)  a completed approved form 80.

   Note:       For paragraph (a), an example of an appropriate authority is a police force.

   (3)   The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.

8. A failure to provide the evidence requested under r.2.03AA would mean that the additional criteria for public interest criterion 4001 are not satisfied and the decision maker must refuse the application on that basis.

9. On 25 April 2022 the Tribunal received an Australian National Police Certificate, dated 1 March 2022, which certifies there are no disclosable court outcomes recorded against the applicant’s name. 

10. There is no evidence before the Tribunal to suggest that the applicant does not pass the character test.  There is nothing in the Department records to indicate that the applicant would not pass the character test. The Tribunal is satisfied that there is nothing to indicate that the applicant would fail to satisfy the Minister that she passes the character test. The Tribunal finds that the applicant meets PIC 4001(a). She therefore satisfies PIC 4001 for the purposes of cl.461.223 of the Regulations.

11. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 461 visa.

    decision

12. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

    ·PIC 4001 for the purposes of cl.461.223 of Schedule 2 to the Regulations

    David Barker
    Member