Unadkat (Migration)

[2020] AATA 5778

Unadkat (Migration) [2020] AATA 5778 (30 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pravin Khodidas Lalji Unadkat
Mrs Nirupa Pravin Unadkat

CASE NUMBER:  1905824

DIBP REFERENCE(S):  CLF2016/31251

MEMBER:Steven Griffiths

DATE:30 September 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Contributory Aged Parent (Temporary) (Class UU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 884 visa:

·Regulation 2.03AA(2) for the purposes of Public Interest Criteria 4001 and cl.884.224 and cl.884.226 of Schedule 2 to the Regulations.

Statement made on 30 September 2020 at 9.59am

CATCHWORDS

MIGRATION – Contributory Aged Parent (Temporary) (Class UU) visa – Subclass 884 visa– statement from an appropriate authority provided – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r.2.03, Schedule 2, cls 884.224, 884.226

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 Contributory Aged Parent (Temporary) (Class UU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 23 May 2016. The criteria for a Contributory Aged Parent (Temporary) (Class UU) 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.884.224 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 28 February 2019 on the basis that the applicant did not meet r.2.03AA because the parties had not provided court  and sentencing remarks for the primary applicant, with a statement by him outlining the circumstances of the offending, United Kingdom police certificate for the secondary applicant, Australian Federal Police certificates for the parties listing their full names and employment information of the parties.

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. On 20 March 2019 the Tribunal wrote to the applicants and requested they provide a current United Kingdom Police Certificate for the secondary applicant and Australian Federal Police Certificates that list the full names of the applicants.

9. The Tribunal notes that on 14 June 2019 the then registered migration agent of the parties provided National Police Certificates from the Australian Federal Police, for both parties and listing their full names, dated 23 May 2019, a Police Certificate from the United Kingdom, for the secondary applicant, dated 17 May 2019 and a Police Certificate from the United Kingdom, for the applicant, dated 26 April 2019.  

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

    Conclusion

11. On the basis of the above findings, the applicants meet r.2.03AA(2).

    DECISION

12. The Tribunal remits the applications for Contributory Aged Parent (Temporary) (Class UU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 884 visa:

    ·Regulation 2.03AA(2) for the purposes of Public Interest Criteria 4001 and cl.884.224 and cl.884.226 of Schedule 2 to the Regulations.

    Steven Griffiths
    Member