Wong (Migration)

[2018] AATA 1944

Wong (Migration) [2018] AATA 1944 (30 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sze Kai WONG

CASE NUMBER:  1806996

DIBP REFERENCE(S):  BCC2015/3787025

MEMBER:Shane Lucas

DATE:30 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·Regulation 2.03AA(2)(a)

Statement made on 30 April 2018 at 11:37am

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Evidence of criminal history not provided to the Department – Evidence of criminal history subsequently provided to the Tribunal – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2 cl 820.223(1)(a), 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 applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 10 December 2015. The criteria for a Partner (Temporary) (Class UK) 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.820.223(1)(a) 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. 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).

5. The delegate refused to grant the visa on 26 February 2018 on the basis that the applicant did not meet r.2.03AA(2)(a) because the visa applicant did not provide a police certificate or other statement provided by a relevant authority in Australia, being a country in which the visa applicant resides, that provides evidence about whether or not the applicant has a criminal history. The delegate requested this information on 8 March 2017, and again on 1 November 2017.

6. The delegate also concluded that as the applicant provided no claims or evidence that it was not unreasonable to provide the police certificate or statement, r.2.03AA(3) did not apply.

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 applicant has provided a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history, as required by r.2.03AA(2)(a).

   Has the applicant provided a statement from an appropriate authority?

9. On 6 April 2018, the Tribunal was provided with a National Police Certificate from the Australian Federal Police (dated 14 March 2018) stating that there are no disclosable court outcomes recorded against the visa applicant.

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 applicant meets r.2.03AA(2)(a).

    DECISION

12. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·Regulation 2.03AA(2)(a).

    Shane Lucas
    Member