Mehdi (Migration)

[2019] AATA 393

Mehdi (Migration) [2019] AATA 393 (18 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Mehdi

CASE NUMBER:  1834011

DIBP REFERENCE:  BCC2015/1866348; CLF2018/362258

MEMBER:Rosa Gagliardi

DATE:18 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Spouse) visa:

·Public Interest Criterion 4001 for the purposes of cl.820.222 of Schedule 2 to the Regulations on the condition that the applicant submit to the Department for verification original AFP clearance for their assessment and final approval.

Statement made on 18 January 2019 at 11:29am

CATCHWORDS

MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – statement from appropriate authority on criminal history – copy of AFP National Police Certificate – no disclosable court outcomes – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; 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 on 1 June 2018 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) Subclass 100 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 29 June 2015. The delegate refused to grant the visa on the basis that the applicant had not submitted a statement from an appropriate authority about whether or not the applicant has a criminal history.

3. As the issue in this case is straightforward the Tribunal has proceeded to decision without holding a hearing.

4. The applicant is represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. There was some contention about the Tribunal potentially not having jurisdiction to review the case due to claims that the applicant was defectively notified by the Department.  Both the Department and the applicant have put forward their version of events and both have provided convincing responses to the Tribunal’s inquiries.  This is particularly so as there appear to be some grey areas in terms of the applicant’s communications with the Department.  After having examined the evidence, the Tribunal has decided that it does have jurisdiction to review the Department’s decision and that the benefit of the doubt should be extended to the applicant.

7. The substantive issue was that the applicant had not met PIC 4001 for the grant of the visa and regulation 2.03AA applied as the applicant had not provided a sufficient police certificate.  This was despite repeated efforts by the Department to seek the requisite information. 

8. On 17 January 2019 the applicant submitted to the Tribunal a copy of an AFP National Police Certificate, dated 10 October 2018, reflecting Complete Disclosure and advising that there were no disclosable court outcomes recorded against the name of the applicant in the records of the Australian Federal Police and the Police in all Australian States and Territories as at 10 October 2018.

   DECISION

9. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Spouse) visa:

   ·Public Interest Criterion 4001 for the purposes of cl.820.222 of Schedule 2 to the Regulations on the condition that the applicant submit to the Department for verification original AFP clearance for their assessment and final approval.

   Rosa Gagliardi
   Member