Preskey (Migration)

[2020] AATA 1905

Preskey (Migration) [2020] AATA 1905 (18 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Raymond Gordon Preskey
Mrs Yvonne Ann Preskey

CASE NUMBER:  1927680

DIBP REFERENCE(S):  CLF2016/25516

MEMBER:Kira Raif

DATE:18 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Aged Parent (Residence) (Class BP) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 804 visa:

·Regulation 2.03AA(2)

Statement made on 18 May 2020 at 3:03pm

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) –criminal history statement and Form 80 – certificates and forms provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2, cl 804.225, 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 Immigration to refuse to grant the applicants Aged Parent (Residence) (Class BP) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 19 April 2016. The criteria for a Aged Parent (Residence) (Class BP) visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: r.2.03AA(1). In this case, 804.225 of Schedule 2 of the Regulations requires the applicant to meet PIC4001. The applicant is therefore required to satisfy the criterion in r.2.03AA(2). 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 r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

4. The delegate refused to grant the visas on 12 September 2019 on the basis that the applicant did not meet r.2.03AA because the visa applicants had not provided their police certificates and Forms 80.

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

   Have the applicants provided a completed approved Form 80 and statements from an appropriate authority?

6. The applicant provided to the Tribunal a copy of the primary decision which indicates that the delegate requested them to provide completed forms 80 and police certificates from the UK and Australian but these had not been provided.

7. The applicants provided to the Tribunal completed Forms 80 and police certificates from Australia and the UK. Having regard to that  evidence, the Tribunal finds that the applicants meet r.2.03AA(2).

   Conclusion

8. On the basis of the above findings, the applicants meet r.2.03AA(2).

   DECISION

9. The Tribunal remits the applications for Aged Parent (Residence) (Class BP) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 804 visa:

   ·Regulation 2.03AA(2).

   Kira Raif
   Senior Member