Sklavos (Migration)

[2019] AATA 3445

Sklavos (Migration) [2019] AATA 3445 (26 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Athanasios SKLAVOS

CASE NUMBER:  1907404

DIBP REFERENCE(S):  BCC2017/3053660

MEMBER:Mireya Hyland

DATE:26 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following specified criterion for a Subclass 820 visa:

·r.2.03AA of the Regulations.

Statement made on 26 July 2019 at 1:56pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – criminal history certificate – certificate provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2 cl 830.223, r 2.03AA, Public Interest Criterion (PIC) 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, Athanasios Sklavos, a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Sklavos applied for the visa on 24 August 2017. At that time, Class UK contained one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). On 4 March 2019, the delegate refused to grant the visa on the basis that Mr Sklavos did not meet cl.830.223 because evidence about whether or not he has a criminal history was not provided.

3. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   CONSIDERATION OF THE EVIDENCE

4. Clause 820.223 requires that at the time of this decision, among other things, the applicant satisfies public interest criteria 4001 in Schedule 4 to the Regulations. Relevantly, r.2.03AA(1) states that if a person is required to satisfy PIC 4001, the criterion in r.2.03AA(2) is prescribed. Regulation 2.03AA(2) requires that, if requested by the Minister, an applicant has to have provided either: (a) a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history; (b) or a completed approved form 80. The Note to r.2.03AA(2) states that, for paragraph (a), an example of an appropriate authority is a police force.

5. Although it is not on the Department of Home Affairs’ (DOHA) file, according to the delegate’s decision, on 7 February 2018 a request was sent to Mr Sklavos asking him to provide an ‘Australian Federal Police (AFP) clearance National Police Check’: r.203AA(2)(a). At the time of the delegate’s decision Mr Sklavos had not provided the AFP clearance certificate, being the requested statement by an appropriate authority in Australia (where Mr Sklavos resides) providing evidence about whether he has a criminal history.

6. On 3 July 2019, the Tribunal received a National Police Certificate certifying that there are no disclosable court outcomes recorded against Mr Sklavos in the records of the AFP and police in all Australian States and Territories as at 6 March 2019. Since a form 80 was not requested, the Tribunal finds that the prescribed criterion in r.2.03AA(2) is satisfied.

7. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   DECISION

8. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following specified criterion for a Subclass 820 visa:

   ·r.2.03AA of the Regulations.

   Mireya Hyland
   Member