Williams (Migration)

[2024] AATA 1082

Williams (Migration) [2024] AATA 1082 (29 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Carly Jo Williams

REPRESENTATIVE:  Mr Andrew John Emmott (MARN: 9791106)

CASE NUMBER:  2405184

HOME AFFAIRS REFERENCE(S):          BCC2022/4501390

MEMBER:Linda Holub

DATE:29 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 visa:

·Regulation 2.03AA(2)

Statement made on 29 April 2024 at 12:37pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – criminal history statements by appropriate authorities – national and city statements provided to tribunal – no disclosable history – criminal checks and clearance letters not permitted by state law – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(1), (2)(a), Schedule 3, cl 309.225, Schedule 4, cl 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 Home Affairs to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 27 October 2022. The criteria for a Partner (Provisional) (Class UF) 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, clause 309.225 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 27 January 2024 on the basis that the applicant did not meet reg 2.03AA because the applicant did not provide the requested USA FBI clearance and the USA Arizona state-wide clearance.

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 the statements by appropriate authorities 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 was provided with a document from the FBI dated 3 January 2024 indicating that “a search of the fingerprints provided [by the applicant] has revealed no prior arrest data at the FBI”. The Tribunal was also provided with a document from the Mesa Police Department dated 11 January 2024. It states that there is no record of any adult arrest of the applicant with the Mesa Police Department of Arizona.

9.    The Tribunal wrote to the applicant on 2 April 2024, acknowledging receipt of the documents provided and highlighted that it appears that the document was from a local police service and not the state-wide police clearance documents sought by the Department. No response was received.

10.          On 23 April 2024 a Tribunal officer called the applicant’s representative in regard to the Tribunal's email of 2 April 2024. The representative advised me that he had not received an email from 2 April 2024. The officer explained the purpose of the call and was advised that the review applicant had been told by the Arizona State Police that they were unable to issue a state police clearance certificate but could provide a local clearance certificate and advised the applicant to seek a clearance certificate from the FBI, which she had done and provided to the Tribunal.

11.          On 24 April 2024, the applicant’s migration representative emailed the Tribunal advising:

“As set out on the Arizona State website (see: Arizona law does not permit the Central State Repository to do a criminal history record check or to provide a clearance letter for the purpose of immigration, obtaining a visa, or for foreign adoption. Advice from the Arizona State government website is that a national check can be obtained by contacting the FBI, and that local clearances can be obtained from the local police agency. I have attached a highlighted copy of the relevant page from the Arizona State Government website for your convenience”.

12.          The applicant’s representative submitted that under the circumstances, the FBI certificate and her local police clearance are the only police clearance documents the applicant can obtain as she cannot obtain a state-wide police clearance document, as specified under Arizona State Law.

13.          The Tribunal is satisfied based on information before it that the applicant has provided statements from the appropriate authorities and therefore meets reg 2.03AA(2)(a).

Conclusion

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

DECISION

15.          The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 visa:

·Regulation 2.03AA(2).

Linda Holub
Member