Su (Migration)

[2018] AATA 2134

Su (Migration) [2018] AATA 2134 (8 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wenzhao Su

CASE NUMBER:  1813048

DIBP REFERENCE(S):  BCC2015/1502531

MEMBER:Russell Matheson

DATE:8 June 2018

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 08 June 2018 at 11:34am

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 802 (Spouse) visa – Security assessment – National Police Certificate provided – No criminal history – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA Schedule 4 Criterion 4001, 4002

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

2. The applicant applied for the visa on 22 May 2015. The criteria for a Partner (Temporary) (Class UK) visa are set out in Schedule 2 to the Migration Regulations 1994 (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: r.2.03AA(1). In this case, r.2.03AA(2)(a) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in r.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.

5. The Tribunal may waive the requirement in r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

6. The delegate refused to grant the visa on 16 April 2018 on the basis that evidence of criminal history was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations). 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.

   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.

8. On 29 May 2018 the Tribunal received a copy of a National Police Certificate from the certifying that there is no disclosable court outcomes recorded against Mr Wenzhao Su, born on 3 January 1990, in the records of Australian Federal Police and the police in all Australian states and territories as at 23 May 2018.

9. 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.

10. On the basis of the above findings, the applicant meets r.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