Page (Migration)

[2024] AATA 215

Page (Migration) [2024] AATA 215 (6 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Susan Lee Page

CASE NUMBER:  2317276

HOME AFFAIRS REFERENCE(S):          BCC2022/3700211

MEMBER:Katie Malyon

DATE:6 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·Regulation 2.03AA(2).

Statement made on 06 February 2024 at 5:10 pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal history – Australian Federal Police clearance and Alabama State Police Clearance provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 820.223; 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 (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, USA national Mrs Susan Lee Page, applied for the visa on 9 September 2022. Criteria for a Partner (Temporary) (Class UK) 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 820.223 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. Mrs Page is therefore required to satisfy the criterion in reg 2.03AA(2).

4. In summary, reg 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). However, the Tribunal cannot waive the requirement for the applicant to provide a completed Form 80 if this has been requested by the delegate.

5. The delegate refused to grant the visa on 10 October 2023 on the basis that Mrs Page did not meet reg 2.03AA because she failed to respond to the delegate’s multiple requests to provide both an Australian Federal Police Clearance and a police certificate from the state of Alabama in USA.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. It did not hold a hearing in this matter as, consistent with s 360(2) of the Act, the Tribunal considers that it should decide the review in Mrs Page’s favour on the basis of material before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether, as at the time of this decision, the applicant has provided a statement from 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. As noted above, when the delegate made their decision to refuse Mrs Page a Subclass 820 Partner (Temporary) visa, she had not provided the requested police clearance certificates.

9. On 13 December 2023, Mrs Page provided the Tribunal with her Australian Federal Police clearance dated 1 December 2023.  It confirms that there are no disclosable court outcomes recorded against Mrs Page, or her maiden name of Susan Lee Sessions, in the records of the Australian Federal Police and the police records of all Australian states and territories.   Mrs Page also provided evidence of her attempts to obtain a police clearance from Alabama police.  Subsequently, on 10 January 2024 Mrs Page provided a signed State Police Clearance issued by Alabama Law Enforcement Agency’s Records and Identification Division dated 9 January 2024.  It confirms that there are no criminal records on file in relation to Mrs Page.  

10. Following constitution of the matter to the Member on 2 February 2024, evidence provided to date was reviewed. Having regard to available evidence, the Tribunal is satisfied that Mrs Page has provided statements from appropriate authorities in Australia and Alabama which confirm that she does not have any criminal records. Accordingly, it finds that she meets reg 2.03AA(2)(a) of the Regulations.

    Conclusion

11. Having reviewed the Department’s file, there is no evidence the delegate made a request for Mrs Page to provide a completed Form 80. Therefore, the requirement in reg 2.03AA(2)(b) of the Regulations does not apply.

12. On the basis of the above findings, the Tribunal is satisfied that Mrs Page meets reg 2.03AA(2).  The appropriate course is to remit the application to the Department to enable consideration of remaining criteria for grant of the visa. 

    DECISION

13. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·Regulation 2.03AA(2).

    Katie Malyon

    
    Member