Yoshimoto (Migration)

[2021] AATA 1927

Yoshimoto (Migration) [2021] AATA 1927 (24 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kazumi Yoshimoto

CASE NUMBER:  2100960

HOME AFFAIRS REFERENCE(S):          BCC2018/1996774

MEMBER:Susan Trotter

DATE:24 April 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 24 April 2021 at 2:58pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Family Relationship (Temporary)) – character test – statement from an appropriate authority – Australian Federal Police clearance National Police check – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 461.223; 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 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 4 May 2018. 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(a) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. 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 21 January 2021 on the basis that the applicant did not meet reg 2.03AA because she had not provided, as requested, a police certificate or other statement from an appropriate authority from countries in which she has lived for a cumulative period of 12 months or more, over the last 10 years, since turning 16 years of age. In particular the applicant had been requested to provide an updated ‘Australian Federal Police clearance National Police check’ given the previous one provided, dated 6 April 2018, had expired after 12 months.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 29 January 2021.

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

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. One of the requirements for the grant of a Subclass 461 visa is that an applicant satisfies cl.461.223 of Schedule 2 to the Regulations at the time of decision. Clause 461.223 provides as follows:

   The applicant:

   (a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4010, 4013, 4014, 4020 and 4021; and

   (b) if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019.

10. Public interest criterion 4001 provides as follows:

    [4001]       Either:

    (a) the person satisfies the Minister that the person passes the character test; or

    (b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

    (c) the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

    (d) the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

11. Where a person is required to satisfy PIC 4001 for the grant of a visa, additional criteria are prescribed under r.2.03AA that must be met for the grant of visa. Regulation 2.03AA provides as follows:

    Reg 2.03AA Criteria applicable to character tests and security assessments

    (1)  In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

    (2)  If the Minister has requested the following documents or information, the person has provided the documents or information:

    (a)      a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

    (b)      a completed approved form 80.

    Note: For paragraph (a), an example of an appropriate authority is a police force.

    (3)  The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.

12. The delegate has restricted their consideration of the Subclass 461 visa criteria to r.2.03AA. For the purpose of this review, consistent with paragraph 8.2 of the Tribunal President’s Direction – Conducting Migration and Refugee Reviews (1 August 2018), the Tribunal will therefore restrict its consideration to the criterion canvassed by the delegate.

13. The delegate’s decision was made because the applicant had not provided an updated police certificate from Australia. However, the applicant has subsequently provided the Tribunal with a copy of a new National Police Certificate issued by the Australian Federal Police dated 2 December 2020 stating “there are no disclosable court outcomes recorded against” the applicant.

14. As the applicant has now provided a statement from an appropriate authority in Australia in relation to whether or not she has a criminal history, r.2.03AA(2)(a) is now met. Further, a completed Form 80 appears on the Departmental file (r.2.03AA(2)(b)).

15. The Tribunal is therefore satisfied that the applicant now meets r.2.03AA.

16. Although the delegate found that the applicant did not satisfy cl.461.223, this finding appears to have been made on the basis that the applicant failed to provide statements from appropriate authorities as requested and did not meet r.2.03AA(2)(a), which was necessary for an assessment of PIC 4001. As the applicant has now provided the statements, the delegate is now able to assess whether the applicant meets PIC 4001 for the purposes of cl.461.223.

17. The Tribunal considers the appropriate course of action is to remit the application to the Minister to undertake consideration of whether the applicant meets PIC 4001 for the purposes of cl.461.223 and the remaining criteria for the grant of a Subclass 461 visa.

    DECISION

18. 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.

    Susan Trotter
    Member