Rosito (Migration)

[2023] AATA 4229

Rosito (Migration) [2023] AATA 4229 (31 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ma Elena Salome Rosito

REPRESENTATIVE:  Mr Michael Moeidjiantho (MARN: 1572961)

CASE NUMBER:  2306882

HOME AFFAIRS REFERENCE(S):          BCC2020/2021814

MEMBER:Moira Brophy

DATE:31 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·Regulation 2.03AA(2).

Statement made on 31 July 2023 at 9:20am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – character test – statement from an appropriate authority – AFP Digital Certificate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 820.223

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 Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 4 August 2020. The criteria for a Partner (Temporary) (Class UK) 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. 820.223(1)(a) 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 visa on 10 May 2023 on the basis that the applicant did not meet PIC 4001 as required in reg 2.03AA because he had not provided a clearance from the Australian Federal Police being a country he had resided in for a period of twelve months or more in the preceding ten years.

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. On 28 April 2022 and 22 June 2022 the delegate made a request for the applicant to provide a statement from an appropriate authority in a country where the applicant resides or has resided, that country being Australia.

9. On 16 June 2023 the applicant provided a copy of his AFP Digital Certificate dated 16 June 2023 showing there were no disclosable court outcomes.

10. The Tribunal is satisfied the applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

    DECISION

11. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·Regulation 2.03AA(2).

    Moira Brophy
    Member