Shakespeare (Migration)

[2022] AATA 5010

Shakespeare (Migration) [2022] AATA 5010 (6 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jessica Ann Elizabeth Shakespeare

CASE NUMBER:  2215435

HOME AFFAIRS REFERENCE(S):          BCC2020/2701604

MEMBER:Russell Matheson

DATE:6 December 2022

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 06 December 2022 at 5:15pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal history statement – Australian and appropriate other police certificates for applicant and sponsor received by tribunal – no disclosable court outcomes – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 2.03(2), 2.03AA(2)(a), Schedule 2, 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 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 25 November 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, r 2.03(2) 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 7 October 2022 on the basis that the applicant did not meet reg 2.03AA because evidence of criminal history was not provided as required to satisfy a criterion for the grant of the visa under the Regulations. Considering the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

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 the person has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

8. On 20 October 2022, the Tribunal received a copy of a National Police Certificate from the Australian Federal Police, Co-ordinator Criminal Records, certifying that there are no disclosable court outcomes recorded against the name of the applicant Jessica Ann Elizabeth Shakespeare, born on 8 February 1996, in the records of the Australian Federal Police and the police in all Australian states and Territories as of 11 October 2022. The Tribunal also received a copy of a National Police Certificate from the Australian Federal Police, Co-ordinator Criminal Records, certifying that there are no disclosable court outcomes recorded against the name of the sponsor Paul Andrew Elliot, born on 17 March 1981, in the records of the Australian Federal Police and the police in all Australian states and Territories as of 11 October 2022. On 11 November 2022, the Tribunal received a copy of UK Police Certificate from the applicant indicating she has no criminal history. Additionally, the sponsor provided a copy of a police certificate issued by the U.S Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division stating that a search of fingerprints provided by him has revealed no prior arrest data at the FBI but does not preclude further criminal history at a state or local level. 

9. The applicant has provided a statement from an appropriate authority and therefore meet reg 2.03AA(2)(a).

   Conclusion

10. Based on the above findings, the applicant meets reg 2.03AA(2).

    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).

    Russell Matheson
    Member