Aggarwal (Migration)

[2020] AATA 3338

Aggarwal (Migration) [2020] AATA 3338 (10 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Deepak Aggarwal
Mrs Monika Aggarwal

CASE NUMBER:  1825347

DIBP REFERENCE(S):  BCC2017/4060979

MEMBER:R. Skaros

DATE:10 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Business Skills (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 188 visa:

·Regulation 2.03AA(2)(b).

Statement made on 10 August 2020 at 12:17pm

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – criminal history Form 80 not provided to department – completed form provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 2.03AA(1), (2)(b), Schedule 2, cl 188.213, Schedule 4, criterion 4002

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 applicants Business Skills (Provisional) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 2 November 2017. The criteria for a Business Skills (Provisional) 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.188.213 of Schedule 2 of the Regulations requires the applicant to meet PIC 4002. The first named applicant (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-Personal particulars for character assessment’ (Form 80).

5. The delegate refused to grant the visas on 17 August 2018 on the basis that the applicant did not meet r.2.03AA because he did not provide a completed Form 80 when requested to do so by the Department.

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.

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 completed Form 80.

   Has the applicant provided a completed approved Form 80?

9. On 2 November 2017 the Department requested the applicant to provide a completed Form 80. On 17 July 2018 the applicants’ migration agent contacted the Department to seek confirmation on whether they had received the documents. On 24 July 2019 the Department responded to this email, advising there were documents outstanding and requesting this material be provided within 28 days. On the same day a second letter of request was sent again requesting the applicant provide a completed Form 80. The Department did not receive a response and the delegate found that the applicant did not meet r.2.03AA(2) or cl.188.213 for the grant of the visa.

10. On Friday 10 July 2020 the applicant provided the Tribunal a copy of his completed Form 80 dated 9 July 2020.

11. The applicant has provided a completed approved Form 80 and therefore meets r.2.03AA(2)(b).

    DECISION

12. The Tribunal remits the applications for Business Skills (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 188 visa:

    ·Regulation 2.03AA(2)(b).

    R. Skaros
    Senior Member