Stear (Migration)

[2022] AATA 2344

Stear (Migration) [2022] AATA 2344 (9 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Nicola Claire Stear

CASE NUMBER:  2203845

HOME AFFAIRS REFERENCE(S):          BCC2020/1944564

MEMBER:Meena Sripathy

DATE:9 May 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 09 May 2022 at 11:09am

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

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994,r 2.03AA(2), Schedule 2, c 461.223, Schedule 3, 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 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 20 July 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, cl.461.223 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. 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 15 March 2022 on the basis that the applicant did not meet reg 2.03AA because the applicant did not provide a police certificate as requested from Australia and made no claims nor provided evidence to satisfy the delegate that it is not reasonable for her to provide a police certificate or statement.

6. On 29 March 2022 the Tribunal received an Australian Police Check issued by the Australian Federal Police for the applicant dated 18 March 2022.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. On 2 February 2022, the delegate made a request for the applicant to provide a police certificate from Australia. No response was provided by the time of the delegate’s decision and the application was refused on the basis that the applicant did not meet subregulation 2.03AA(2).

10. On 18 March 2022 the applicant wrote to the Tribunal stating that she never received the email referred to by the delegate in the decision record requesting the Australian police check. She stated that upon receiving the refusal decision she immediately applied for a new police clearance, and attached an AFP payment receipt. 

11. On 29 March 2022 the Tribunal received a police certificate issued by the Australian Federal Police dated 18 March 2022 relating to the applicant.

12. The applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).  The Tribunal notes a completed Form 80 is included in the Department file provided to the Tribunal.

    Conclusion

13. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in reg 2.03AA(2)(b) does not apply. The Tribunal observes that a completed Form 80 was provided by her with her application for the visa.

14. On the basis of the above findings, the applicant meets reg 2.03AA(2).

    DECISION

15. 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).

    Meena Sripathy
    Member