Wuner (Migration)

[2023] AATA 1891

Wuner (Migration) [2023] AATA 1891 (16 June 2023)

.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Silvana Wuner
Ms Kimberly Scholten
Mr Raphael Michelangelo Scholten

CASE NUMBER:  2307290

HOME AFFAIRS REFERENCE(S):          BCC2020/1521685

MEMBER:Anne Grant

DATE:16 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 820 visa:

·Public Interest Criterion 4001 for the purposes of cl 820.223 of Schedule 2 to the Regulations

Statement made on 16 June 2023 at 2:34pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – criminal history check – certificates from Australia and home country provided – no disclosable court outcomes – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 820.223, Schedule 4, criterion 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 applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 11 May 2020. The delegate refused to grant the visas on 8 May 2023.

2. The delegate made the decision on the basis that evidence of criminal history was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations). The department had requested the primary applicant provide a criminal history check from Australia and Indonesia. By the time the delegate made their decision, those criminal history checks had not been provided.

3. On 26 May 2023 the Tribunal received an Australian Federal Police National Police Certificate dated 15 May 2023 and an Indonesia Police Clearance Certificate dated 12 May 2023. 

4. The AFP certificate confirms that there are no disclosable court outcomes for the primary applicant at the date of the certificate.  The Indonesia Police Certificate confirms that the applicant ‘proves not to be involved in any criminal cases’ from 1983 to the date of the certificate. 

5. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   DECISION

7. The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 820 visa:

   ·Public interest criterion 4001 for the purposes of cl 820.223 of Schedule 2 to the Regulations.

   Anne Grant
   Member