TAO (Migration)

[2020] AATA 2608

TAO (Migration) [2020] AATA 2608 (15 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms MINMIN TAO
Mr CHENGWEI ZHU

CASE NUMBER:  1931903

DIBP REFERENCE(S):  BCC2017/3231864 BCC2019/3050773

MEMBER:Hugh Sanderson

DATE:15 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 820 visa:

·Regulation 2.03AA(2).

Statement made on 15 April 2020 at 8:58am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – National Police Certificate  provided – no disclosable court outcomes against applicant’s name – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA, Schedule 2, cl 820.223

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 applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 6 September 2017. 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, cl.820.223 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. 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.

5. The delegate refused to grant the visas on 21 October 2019 on the basis that the first named applicant (hereinafter ‘the applicant’) did not meet r.2.03AA because despite, a number of requests, the applicant did not provide an Australian Federal Police Certificate. Accordingly, the applicant did not meet the criteria for the grant of the visa and their application was refused. As the applicant did not meet the criteria for the grant of the visa, the second named applicant did not meet the criteria for the grant of the visa and his application was refused.

   Information to the Tribunal

6. The applicant provided to the Tribunal an Australian Federal Police National Police Certificate dated 13 December 2019 stating that there were no disclosable court outcomes against their name.

7. The Tribunal has proceeded to a decision without the need for a hearing. 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. At the time of the decision of the Department, the applicant had not supplied the appropriate statement from the Australian Federal Police. The applicant has now provided a statement from the Australian Federal Police dated 13 December 2019 stating that the applicant has no disclosable court outcomes.

10. As the applicant has now provided a statement from an appropriate authority the applicant meets r.2.03AA(2)(a).

11. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

12. On the basis of the above findings, the applicant meets r.2.03AA(2).

13. As the Tribunal has found the applicant meets this criteria for the grant of the visa, the application of the second named visa applicant is remitted to be reconsidered in full.

    DECISION

14. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 820 visa:

    ·Regulation 2.03AA(2).

    Hugh Sanderson
    Member