Ranga (Migration)

[2021] AATA 2663

Ranga (Migration) [2021] AATA 2663 (19 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Kezia Karen Ranga

CASE NUMBER:  2104684

HOME AFFAIRS REFERENCE(S):          BCC2019/1272753

MEMBER:Kira Raif

DATE:19 May 2021

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 19 May 2021 at 1:42pm

CATCHWORDS
MIGRATION –New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 – Australian police certificate provided – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA(2),  Schedule 2, cl 461.223

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 New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 12 March 2019. The delegate refused to grant the visa on 26 March 2021 on the basis that the applicant did not meet reg 2.03AA because the applicant did not provide her Australian police certificate.

3. 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. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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.

5. 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. 461.223 of Schedule 2 of the Regulations requires the applicant to meet PIC4001. The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

6. 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.

   Has the applicant provided a statement from an appropriate authority?

7. The primary decision record indicates that  in February 2021 the delegate wrote to the applicant requesting her to provide the Australian police certificate and the applicant has not done that within the time allowed.

8. The applicant provided a number of additional documents to the Tribunal, as well as a written submission from her representative which covers many of the issues that do not form part of the primary decision. The applicant also provided to the Tribunal a copy of her AFP Certificate which shows no disclosable outcomes.

9. The Tribunal finds that the delegate made a request for the applicant to provide a statement from an appropriate authority in Australia and the applicant has provided the statement. As the applicant has provided a statement from an appropriate authority, she therefore meets reg 2.03AA(2)(a).

   Conclusion

10. On the basis of the above findings, the applicant meets reg 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