Feichtinger (Migration) [2019] AATA 2688 (11 June 2019)

Last Updated: 16 August 2019

Feichtinger (Migration) [2019] AATA 2688 (11 June 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Thomas Feichtinger

CASE NUMBER: 1903874

DIBP REFERENCE(S): BCC2015/1543058

MEMBER: David Barker

DATE: 11 June 2019

PLACE OF DECISION: Sydney

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

• r.2.03AA(2)(a)

Statement made on 11 June 2019 at 8:31am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – statement on criminal record – Austrian Criminal Record Certificate – no criminal history – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65, 360
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 820.223; 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 Immigration to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 27 May 2015. The delegate refused to grant the visa on 7 February 2019.
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 (the Regulations).
3. On 17 May 2019, the Tribunal received a copy of document, dated 20 March 1996, along with a translation of this document, which states that no criminal record has been found in the Austrian Ministry of the Interior Criminal Police records in relation to Thomas Feichtinger nee Puehringer.
4. More recently, on 23 May 2019, the Tribunal received a scanned copy of an Austrian Criminal Record Certificate, dated 22 May 2019. This document states that no convictions are listed in the criminal records database of the Republic of Austria in relation to Thomas Feichtinger, the applicant.
5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
6. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of r.2.03AA as required for the purposes of PIC 4001.
8. Subclause 820.223(1) states:

The applicant:

1. subject to subclause (2)--satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009; and

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

9. If a person is required to satisfy PIC 4001, r. 2.03AA also applies. Regulation 2.03AA provides that, if requested a visa applicant who is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa is also required to provide: a statement from an appropriate authority as to whether the applicant has a criminal history and/or a completed form 80 (Personal particulars for assessment including character assessment).
10. The Tribunal finds the applicant has now provided a statement from an appropriate authority in Austria which states he has no criminal history in that country.
11. 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 820 visa.

DECISION

12. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:
    • r.2.03AA(2)(a)

David Barker
Member