Van Der Graaf (Migration)

[2020] AATA 5342

Van Der Graaf (Migration) [2020] AATA 5342 (9 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Robert Jan Bram Van Der Graaf
Mrs Maria Avraam Van DerGraff

CASE NUMBER:  1928163

DIBP REFERENCE(S):  CLF2016/27435

MEMBER:Stephen Conwell

DATE:9 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Aged Parent (Residence) (Class BP) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 804 visa:

·Regulation 2.03AA(2)

Statement made on 09 October 2020 at 3:19pm

CATCHWORDS

MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – evidence about criminal history – Australian Federal Police Certificates provided upon review – Police Certificates from the Netherlands – marriage certificate – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, r 2.03; Schedule 2, cl 804.225; Schedule 4, 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 Immigration to refuse to grant the applicants Aged Parent (Residence) (Class BP) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 27 April 2016. The criteria for an Aged Parent (Residence) (Class BP) 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, 804.225 of Schedule 2 of the Regulations requires the applicant to meet PIC4001. 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 17 September 2019 on the basis that the first-named applicant, Mr Robert Jan Bram Van Der Graaf did not meet r.2.03AA because the Department had not been provided with his Australian Federal Police Certificate, overseas police certificate, marriage certificate and Forms 80 as requested.  

6. On the basis of the evidence before it the Tribunal has proceeded to a decision without the need for a hearing.

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 first-named applicant has provided a completed Form 80 and 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. The applicant provided to the Tribunal a copy of the first-named decision which indicates that the delegate requested that the first-named applicant provide the outstanding documents and police certificates that had not been provided at the time of decision.

10. The Tribunal notes that on 6 May 2020 the registered migration agent of the parties provided National Police Certificates from the Australian Federal Police, for both parties and listing their full names, dated 24 April 2020. On 2 September 2020 the agent submitted to the Tribunal Police Certificates from the Netherlands for the applicant, dated 10 July 2020 and for the secondary applicant, dated 20 July 2020, respectively.

11. On 22 September 2020 the Tribunal wrote to the applicants requesting they provide the outstanding documents and police certificates. On 5 October 2020 the agent submitted to the Tribunal a completed Form 80 for the first-named applicant and the marriage certificate of the parties.

12. Having regard to that  evidence, the Tribunal finds that the applicants now meet r.2.03AA(2).

    Conclusion

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

    DECISION

14. The Tribunal remits the applications for Aged Parent (Residence) (Class BP) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 804 visa:

    ·Regulation 2.03AA(2).

    Stephen Conwell
    Member