Mc Mahon (Migration)

[2021] AATA 5065

Mc Mahon (Migration) [2021] AATA 5065 (21 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ian Mc Mahon

REPRESENTATIVE:  Mr Justin Christopher Browne (MARN: 1169631)

CASE NUMBER:  2116086

HOME AFFAIRS REFERENCE(S):          BCC2018/747091

MEMBER:Brendan Darcy

DATE:21 December 2021

PLACE OF DECISION:  Melbourne

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 21 December 2021 at 9:03am

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 provided upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 445.225; 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 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 13 February 2018. 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, 445.225 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 18 October 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 Australia.

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. After assessing this application for a Subclass 461 visa, a delegate on behalf of the Minister sent the applicant via email to the applicant’s representative on 4 August 2021, requesting further information within 28 days, which included a request for a police certificate from Australia. On the same day, the applicant responded to the Department indicating that the applicant was in the process of renewing his passport which will assist him in obtaining a criminal history check from the Australian Federal Police.

9. No response was received. Neither were the requested police clearances submitted, nor any later evidence that they were in progress. The delegate proceeded to refuse the visa on 18 October 2021.

10. The applicant validly applied to have the refusal decision reviewed by the Tribunal on 8 November 2021 with the delegate’s decision record attached.

11. On 24 November 2021, the Tribunal wrote to the applicant via his representative seeking a current Australian police certificate to be provided and to do so by 23 December 2021.

12. On the same day, the Tribunal further received a copy of the applicant’s National Police Certificate issued by the Australian Federal Police dated 29 October 2021.

13. The Tribunal is satisfied that the applicant has provided statements 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 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).

    Brendan Darcy
    Member