Radic (Migration)

[2019] AATA 6068

Radic (Migration) [2019] AATA 6068 (23 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tamara Radic

CASE NUMBER:  1927567

DIBP REFERENCE(S):  BCC2018/2972541

MEMBER:Kira Raif

DATE:23 October 2019

PLACE OF DECISION:  Sydney

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

·Regulation 2.03AA(2)

Statement made on 23 October 2019 at 2:37pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – Australian Federal Police Complete Disclosure Certificate provided – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), r 2.03AA , Schedule 2, cl 461.223, Public Interest 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 applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 August 2018.

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, cl. 461.223 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).

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 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.

5. The delegate refused to grant the visa on 30 September 2019 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide her Australian police certificate.

6. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

   Has the applicant provided a statement from an appropriate authority?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that during the processing of the application the applicant provided the Queensland police certificate but not the AFP one and the delegate was not satisfied the applicant met r. 2.03AA.

8. On 21 October 2019 the applicant provided to the Tribunal the AFP Complete Disclosure Certificate showing an offence of Commit Public Nuisance without conviction.

9. The Tribunal finds that the applicant has provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

   Conclusion

10. On the basis of the above findings, the applicant meets r.2.03AA(2).

    DECISION

11. The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

    ·Regulation 2.03AA(2).

    Kira Raif
    Senior Member