Thomson (Migration)

[2022] AATA 1105

Thomson (Migration) [2022] AATA 1105 (8 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gareth Ross Thomson

CASE NUMBER:  2116172

HOME AFFAIRS REFERENCE(S):          BCC2019/1325281

MEMBER:Steven Griffiths

DATE:8 February 2022

PLACE OF DECISION:  Adelaide

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); and

·cl 461.223 of Schedule 2 to the Regulations.

Statement made on 08 February 2022 at 4:57pm

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

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA(2), Schedule 2, cl 461.223

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 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 March 2019. 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 20 October 2021 on the basis that the applicant did not meet reg 2.03AA because a police certificate from Australia, New Zealand and the United Kingdom had not been supplied.

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 or not the person has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

8. The Tribunal notes the delegate made a request on 2/9/21 for the provision of a statement from a relevant authority in Australia, New Zealand and the United Kingdom that provides evidence about whether or not the person has a criminal history.

9. The Tribunal accepts that the parties provided to the Tribunal on 16/1/22 a United Kingdom Police Certificate dated 13/1/22, an Australian Federal Police National Police Certificate dated 12/11/21 and a New Zealand Ministry of Justice Conviction Check dated 14/1/22 confirming he has no criminal record.  

10. The applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

    Conclusion

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

    DECISION

12. 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); and

    ·cl 461.223 of Schedule 2 to the Regulations.

    Steven Griffiths
    Member