Nigmatulin (Migration)

[2023] AATA 2179

Nigmatulin (Migration) [2023] AATA 2179 (21 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pawel Nigmatulin

CASE NUMBER:  2201566

HOME AFFAIRS REFERENCE(S):          BCC2020/2733078

MEMBER:Alison Murphy

DATE:21 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

·Regulation 2.03AA(2)

Statement made on 21 June 2023 at 9:16am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – applicant provided the Tribunal with further police checks from Poland and Australia – no disclosable court outcomes against the applicant – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 30 November 2020. The delegate refused to grant the visa on 21 January 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. The applicant appeared before the Tribunal on 31 March 2023 to give evidence and present arguments. At the conclusion of the hearing the Tribunal adjourned the review to enable the applicant to provide further Australian and Polish police checks.

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

   THE RELEVANT LAW

5. 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, 600.213 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).

6. 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.

7. The delegate refused to grant the visa on the basis that the applicant did not meet reg 2.03AA because he had not provided an appropriate police clearance from Poland, being a country in which he had resided for 12 months or more over the past 10 years, despite being requested in writing to do so.

8. At hearing the applicant and his nephew gave evidence that they had in fact provided a Polish police check to the Department as requested along with the AFP police check, and they did not understand why the Polish police check did not meet the department’s requirements.

9. I explained to them that the department’s website sets out how the application form for the police check must be completed and the department requires each of boxes 1 and 3 on that form to be checked. As the applicant had only checked box 1 on that form (being the box requesting a search of the criminal registry) and not box 3 (being the box requesting a search of those who are wanted or imprisoned), the resulting police check did not contain all of the information required by the Department. I also noted that the applicant’s AFP check was now more than 12 months old and no longer valid. I adjourned the hearing to enable the applicant to undertake further police checks from both Poland and Australia.

10. On 20 June 2023 the applicant provided the Tribunal with further police checks from Poland and Australia. An AFP Digital National Police Certificate dated 17 June 2023 states that there are no disclosable court outcomes recorded against the applicant in the records of the Australian Federal Police and the police in all Australian states and territories as at 17 June 2023.

11. A certificate and English language translation from the Polish Ministry of Justice dated 28 April 2023 states that the applicant has no criminal record and is not listed in the detained persons register or wanted persons list of the National Register of Criminal records as at that date.

12. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration. 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.

    CONCLUSION

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

    DECISION

14. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

    ·Regulation 2.03AA(2).

    Alison Murphy
    Member