Patel (Migration)

[2023] AATA 3277

Patel (Migration) [2023] AATA 3277 (2 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kiran Kumar Pramodchandra Patel
Miss Maya Patel

REPRESENTATIVE:  Mr Shayaz Khan (MARN: 0639214)

CASE NUMBER:  2312278

HOME AFFAIRS REFERENCE(S):          BCC2021/212251

MEMBER:Justine Clarke

DATE:2 October 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 461 visa:

·Regulation 2.03AA(2)(a)

Statement made on 02 October 2023 at 3:19pm

CATCHWORDS

MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – criminal history – Australian Federal Police National Police Clearance provided upon review – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 461.223; Schedule 4, Public Interest Criterion 4001; r 2.03

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 1 August 2023 by a delegate of the Minister for Home Affairs to refuse to grant the applicants New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On 4 February 2021, the applicants applied for the visas. Hereafter, the first-named applicant is referred to as the primary applicant and the second-named applicant is referred to as the secondary applicant. The criteria for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) 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 641.223 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. Therefore, the applicant is 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. 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).

5. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

6. The review applicant did not provide the Tribunal with a copy of the delegate’s refusal decision (the primary decision). Notwithstanding, from reviewing a copy of the primary decision, which is on the Department’s file, the Tribunal is aware that the delegate refused to grant the visas 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 Australia, 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. The primary decision is silent as to whether the Department had requested the applicant to provide a completed approved Form 80 and thus whether reg 2.03AA(2)(b) had or had not been satisfied.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether, at the time of this decision, 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?

9. The primary decision states that, as at 1 August 2023, which is when the delegate made the refusal decision, the applicant had not provided police certificates from Australia pursuant to the Department’s request of 26 June 2023.

10. On 15 August 2023, the applicant applied to the Tribunal for the review of the primary decision.

11. On 24 August 2023, the applicant submitted a copy of his Australian Federal Police National Police Clearance dated 23 August 2023.

12. Following constitution to the presiding Member, the Tribunal reviewed the evidence before it. The Tribunal finds that the applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

    Conclusion

13. Based on the above findings, the applicant meets reg 2.03AA(2)(a).

14. The Tribunal notes that, if the Department has requested the applicant to provide a completed approved Form 80, he will need to provide the completed approved Form 80 to the Department before a decision maker can be satisfied that he meets reg 2.03AA(2) in its entirety.

15. As the Tribunal has found that the primary applicant meets reg 2.03AA(2)(a), the ability of the secondary applicant to satisfy the secondary criteria should also be reconsidered.

    DECISION

16. The Tribunal remits the applications for New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 461 visa:

    ·Regulation 2.03AA(2)(a).

    Justine Clarke
    Member