Sibia (Migration)

[2022] AATA 5008

Sibia (Migration) [2022] AATA 5008 (6 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jagjeet Singh Sibia

REPRESENTATIVE:  Ms Saloni Nileshkumar Shah (MARN: 2117683)

CASE NUMBER:  2215798

HOME AFFAIRS REFERENCE(S):          BCC2020/2499376

MEMBER:Russell Matheson

DATE:6 December 2022

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 06 December 2022 at 7:16pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – criminal history statement – Australian national police certificate 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, 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 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 15 October 2020. 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.

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 10 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 14 November 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 Jagjeet Singh Sibia, born on 11 December 1976, in the records of the Australian Federal Police and the police in all Australian states and Territories as of 25 October 2022.

9. The applicant has provided a statement from an appropriate authority and therefore meets 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 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).

    Russell Matheson
    Member