Morton-Hicks (Migration)

[2023] AATA 4631

Morton-Hicks (Migration) [2023] AATA 4631 (17 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Michelle Morton-Hicks

CASE NUMBER:  2316666

HOME AFFAIRS REFERENCE(S):          BCC2019/4653050

MEMBER:Melissa McAdam

DATE:17 November 2023

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 820 visa:

·Regulation 2.03AA(2)

Statement made on 17 November 2023 at 4:09pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820– applicant submitted a copy of her French police clearance record – satisfy Public Interest Criterion (PIC) 4001 or 4002 – decision under review remitted        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA(2)

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 (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 17 September 2019. The delegate refused to grant the visa on 3 October 2023.

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 regulation 2.03AA(2) of the Migration Regulations 1994 (Cth) (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 820.223 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 the basis that the applicant did not meet reg 2.03AA because reg 2.03AA(2)(a) was not met. The decision stated that the applicant had not provided a police certificate or other statement from an appropriate authority in France, a country which the applicant had claimed to live for a cumulative period of 12 months or more, over the last 10 years, since turning 16 years of age. In addition, the delegate found that reg 2.03AA(3) did not apply because the applicant had not provided any claims or evidence to satisfy the delegate that it was not reasonable for the applicant to provide the requested evidence.

6. 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?

7. On 7 November 2023, the applicant submitted to the Tribunal an English translation of the applicant’s police clearance record issued by the French National Police Records department, dated 24 April 2023.

8. On 17 November 2023, the applicant submitted to the Tribunal a copy of her French police clearance record issued by the French National Police Records department, dated 24 April 2023.

9. The applicant has therefore provided a statement from the appropriate authority in France as requested and accordingly meets reg 2.03AA(2)(a).

   Conclusion

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 reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·Regulation 2.03AA(2)

    Melissa McAdam
    Member