Walker (Migration)

[2023] AATA 2648

Walker (Migration) [2023] AATA 2648 (4 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jon Ross Walker

CASE NUMBER:  2309122

HOME AFFAIRS REFERENCE(S):          BCC2022/4118364

MEMBER:Moira Brophy

DATE:4 August 2023

PLACE OF DECISION:  Sydney

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)

Statement made on 04 August 2023 at 1:47pm

CATCHWORDS

MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – criminal history – Australian Federal Police certificate provided upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 461.223; Schedule 4, Public Interest Criterion 4001; r 2.03

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 28 September 2022. 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. 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 7 June 2023 on the basis that the applicant did not meet reg 2.03AA because he had not provided a Police Certificate from the Australian Federal Police as requested.

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 29 April 2023 a delegate of the department requested the applicant provide a Police Certificate from the Australian Federal Police. The applicant did not respond to the request.

9. On 6 July 2023 the applicant provided the requested document.

10. The Tribunal is satisfied 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).

    Moira Brophy
    Member