Welch (Migration)

[2024] AATA 3899

Welch (Migration) [2024] AATA 3899 (4 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tremal Jevon Welch

REPRESENTATIVE:  Mr Tanguy Mutamba Mwilambwe (MARN: 1570409)

CASE NUMBER:  2411024

HOME AFFAIRS REFERENCE(S):          BCC2017/4126265

MEMBER:Stephen Witts

DATE:4 September 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl 801.223 of Schedule 2 to the Regulations

Statement made on 04 September 2024 at 9:13am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – applicant has provided a police clearance certificate from the USA –– decision under review remitted  

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 801.223

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 on 24 April 2024 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 6 November 2017 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 801.223 because the delegate was not satisfied that the applicant had provided an outstanding overseas police certificate from the USA.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for re-consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant has provided a police clearance certificate as requested by the Department.

6. The Tribunal notes that the applicant has now provided evidence that he has provided a police clearance certificate from the USA.

7. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 801 visa.

   DECISION

8. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

   ·cl 801.223 of Schedule 2 to the Regulations

   Stephen Witts

   Member