Acosta (Migration)

[2019] AATA 6097

Acosta (Migration) [2019] AATA 6097 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Cher Lorraine Acosta

CASE NUMBER:  1813368

DIBP REFERENCE(S):  BCC2017/3948789

MEMBER:Mary Sheargold

DATE:3 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·Regulation 2.03AA(2)

Statement made on 03 October 2019 at 11:39am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – criminal history statement – authenticity of scanned copy unable to be verified – original copy presented at hearing – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA(2), Schedule 2, cl 457.224(1), 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 Immigration to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 25 October 2017. The criteria for a Temporary Business Entry (Class UC) 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.457.224(1) 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. 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 r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.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 9 May 2018 on the basis that the applicant did not meet r.2.03AA because she had not provided a police clearance certificate from the Kuwaiti authorities in relation to her visa application.

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 a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

8. On 21 May 2018, the applicant provided the Tribunal with a scanned copy of a Certificate of Criminal Status form purportedly from the Kuwaiti government issued on 4 April 2018 stating that she holds a Good Conduct Certificate.  The Tribunal was unable to verify the authenticity of this document based on the scanned copy provided.

9. The applicant appeared before the Tribunal on 3 October 2019 and presented the original copy of the Certificate of Criminal Status form.  The original copy of the form indicates that it was issued by the Kuwaiti government on 4 April 2018.  It is apparent to the Tribunal that this Certificate of Criminal Status is the original copy of the same document that was provided to the Tribunal on 21 May 2018.

10. Based on this evidence, the Tribunal finds that the applicant has provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

    Conclusion

11. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

12. On the basis of the above findings, the applicant meets r.2.03AA(2).

    DECISION

13. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·Regulation 2.03AA(2).

    Mary Sheargold
    Member