Mohammed Hessin (Migration)

[2024] AATA 3154

Mohammed Hessin (Migration) [2024] AATA 3154 (23 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Shaden Saad Mohammed Hessin

CASE NUMBER:  2408585

HOME AFFAIRS REFERENCE(S):          BCC2020/2759712

MEMBER:Anne Grant

DATE:23 August 2024

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 visa:

·Regulation 2.03AA(2)

Statement made on 23 August 2024 at 3:00pm

CATCHWORDS

MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – criminal history – Australian Federal Police National Police Certificate provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 100.222; 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 Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 4 December 2020. The criteria for a Partner (Migrant) (Class BC) 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, cl 100.222 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. 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 16 April 2024 on the basis that the applicant did not meet reg 2.03AA because he had not provided a statement from the Australian Federal Police about whether or not he has a criminal history.  The department had written to the applicant to request the certificate on 6 November 2023, 18 December 2023, and again on 16 February 2024.  However the applicant had not provided it by the date of the delegate’s decision. 

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. On 18 April 2024, the applicant provided to the Tribunal a National Police Certificate from the Australian Federal Police dated 3 April 2024.  The report states that the applicant has no disclosable court outcomes as at the date of the certificate.   

9. The Tribunal is now satisfied that the applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

10. 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.

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

    DECISION

12. 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 visa:

    ·Regulation 2.03AA(2).

    Anne Grant
    Member