Pearson (Migration)

[2024] AATA 59

Pearson (Migration) [2024] AATA 59 (3 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Victoria Clare Pearson
Mr Jake Thomas Pearson

REPRESENTATIVE:  Mr Anthony Keiran Ross (MARN: 0317382)

CASE NUMBER:  2319893

HOME AFFAIRS REFERENCE(S):          BCC2020/1693344  January

MEMBER:Brendan Darcy

DATE:3 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Migrant) (Class BC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 100 visa:

·Regulation 2.03AA(2)

Statement made on 03 January 2024 at 11:11am

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – criminal history – certificate from home country provided with temporary application now invalid and AFP certificate not provided to department – recent certificates provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(1), (2)(a), Schedule 2, cl 100.222, Schedule 4, criterion 4001

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 applicants Partner (Migrant) (Class BC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 6 June 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, clause 100.222 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).

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 visas on 23 November 2023 on the basis that the applicant did not meet reg 2.03AA because the applicant had not provided a police clearance certificate or statement provided by an appropriate authority in Australia and the United Kingdom of Great Britain and Northern Ireland (the United Kingdom).  

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. After assessing the visa application, a delegate on behalf of the Minister sent the applicant an email on 17 July 2023, requesting further information, which included a request for police clearance certificates from Australia and the United Kingdom. 

9. On 05 September 2023 a delegate of the Minister sent the applicant a further request for information via email, which included the request from same information immediately mentioned above.

   On 24 September 2023, the Department informed the applicant that while it acknowledged a UK ACRO Police Certificate was provided at the Subclass 309 stage, it was issued on 23 December 2020, and is now however invalid. Furthermore, an Australian Federal Police (AFP) National Police Certificate was also requested and has not been provided to date.

10. After a notable period of time, the delegate proceeded to refuse the visa on 23 November 2023 on the basis of a lack of compliance with regulation 2.03AA(2)(a) due to the lack of police clearance certificate from Australia and the United Kingdom.

11. The applicant validly applied to have the refusal decision reviewed by the Tribunal on 6 December 2023.

12. On 18 December 2023, the Tribunal received a copy of a police clearance certificate issued by the Australian Federal Police.  Dated 25 November 2023, the certificate was issued in relation to the first named applicant.

13. It also received a copy of a clearance certificate from the United Kingdom issued on 6 December 2023 in relation to the first named applicant.

14. With no reasons to the contrary, the Tribunal is satisfied that the first named applicant has provided statements from the appropriate authorities, as requested, and therefore meets reg 2.03AA(2)(a).

15. Based on this information, no scheduled hearing was required to reach a favourable decision in this matter.

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

    DECISION

17. The Tribunal remits the applications for Partner (Migrant) (Class BC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 100 visa:

    ·Regulation 2.03AA(2).

    Brendan Darcy
    Member