Alqasim (Migration)

[2024] AATA 2819

Alqasim (Migration) [2024] AATA 2819 (23 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmad Alqasim

CASE NUMBER:  2407372

HOME AFFAIRS REFERENCE(S):          BCC2019/5078870

MEMBER:Alison Mercer

DATE:23 July 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a GK – Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 482 visa:

·Regulation 2.03AA(2).

Statement made on 23 July 2024 at 6:00pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – previous remittal on ground of approved position nomination – criminal history statement – neither applicant or previous agent advised department of agent ceasing to act, and agent did not forward department’s emails to applicant – AFP certificate provided to tribunal – applicant has not lived in home country in last 10 years – decision made without  hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 2, cl 482.217, Schedule 4, criteria 4001, 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 Home Affairs to refuse to grant the applicant a GK – Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 10 October 2019. The criteria for a GK – Temporary Skill Shortage (Class GK) 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. A delegate of the Minister originally refused to grant the applicant a subclass 482 visa on 4 December 2019 on the basis that the applicant was not the subject of an approved nomination by his Australian employer and therefore could not satisfy cl.482.212.

4. The applicant sought review of that refusal decision with the Tribunal on 21 December 2019. On 1 September 2023, the Tribunal (differently constituted) set aside the Department’s decision and remitted the applicant’s visa application back to the Department, on the basis that the Tribunal had approved the nomination of the applicant by his employer.

5. On 25 March 2024, a delegate of the Department again refused to grant the applicant a subclass 482 visa, on the basis that the applicant did not meet the applicable Public Interest Criteria (PIC).

6. 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.482.217 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).

7. 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.

8. The delegate refused to grant the visa on 25 March 2024 on the basis that the applicant did not meet reg 2.03AA because he failed to respond to the Department’s requests of 12 September 2023 and 12 December 2023 to provide police clearance certificates from each country he had resided for a total of 12 months or more, cumulatively, over the last 10 years. The delegate found that they could not be satisfied that the applicant met r.2.03AA(2) or r.2.03AA as a whole, and therefore the applicant could not meet cl.482.217.

9. The Tribunal received a review application from the applicant on 8 April 2024. It was accompanied by a copy of the delegate’s decision, a copy of the Department’s request to the applicant, a receipt dated 4 April 2024 for an application by the applicant to the Australian Federal Police (AFP) for a national police check, copy of Department approval letter dated 12 September 2023 for a subclass 482 visa to the applicant, copy of Department approval of nomination of the applicant by his employer Broadway Bigfresh Pty Ltd, dated 12 September 2023, copies of Department emails for s.56 request, visa refusal notification and nomination approval sent to the applicant’s former agent, and written statement from the applicant.

10. In his statement, the applicant makes the following points:

…

·     During the first quarter of 2019 I applied for visa subclass 482 as an IT System Analyst for the Big Fresh Group company. The visa has two applications

o    Nomination application – Big Fresh Group

o    Visa application – Ahmad Alqasim

o    Applications submitted through an authorised immigration lawyer Fatima El-kheir, the order of Borderless Migration Company

·     On 10/10/2019 the decision made by the immigration to refuse both

o    The nomination application – refused

o    Visa application – refused

·     After that, Fatima El-kheir told me that I can apply for the AAT to review my decision. She also said she can submit the applications for the AAT. I told Fatima that I do not want her services and I will submit the applications by myself.

o    Fatima El-kheir never told me that I should submit the application 956A to end her relationship with my case

o    She also never told Immigration that I am not her client anymore

o    I never told the immigration myself because I never know what there is an application 956A that I need to submit. If my immigration lawyer told me how can I guess such thing!!

·     On Oct 2019 I submitted two decision review applications for the AAT

o    Nomination visa – review

o    Visa application – review

·     While I was waiting for the hearing my father health situation deteriorated. I decided to travel back to Jordan in order to see him. That was on May 2023.

·     While I was in Jordan the AAT emailed me and requested more information related to my case and assigned the date for the hearing. I travelled back to Australia to collect the required documents and attend the hearing

·     The AAT hearing court conducted on July 2023 and the decision made:

o    The nomination application – approved

o    The visa application – remit

·     On 1/092023 the AAT sent me the formal decision letters and sent a copy to the immigration.

·     After that it the immigration office only twelve days to send the first email to my immigration lawyer.

·     After that the immigration office sent three emails to Fatima El-kheir

o    12/0/2023 [sic]: Nomination visa – approval

o    12/12/2023: requesting police check and AFP check for Ahmad Alqasim

o    25/03/2023: visa 482 refusal because documents never sent to the immigration

·     The immigration lawyer made few mistakes which lead to this situations.

o    When I told Fatima El-kheir that I do not want her to look after my case anymore she never told me that I should submit the 956A application to withdraw her from my case

o    She also never herself informed the immigration that I am not her client anymore.

o    When the immigration office sent the three emails mentioned above to Fatima El-kheir she never informed me or forward the emails for me.

o    As a result the immigration refused my application.

o    The immigration only asked for a national police check, if Fatima El-kheir forward the emails to me earlier I will be able to prepare the national police check report early and send it back to the immigration office.

o    If Fatima El-kheir care and did not ignore the emails send by the immigration my case can be solved earlier.

o    If my case solved earlier I will be able to travel back again and look after my father. However, on 27/03/2024 my brother called me on the phone and told me while I was here in Australia waiting for the immigration decision that my father passed away.

o    I was lucky to ask the immigration about my case on 1/4/2024 seven days after the visa refusal issued. If I asked maybe 15/04/24 then I would not be able to lodge a decision review with AAT as I only have 21 days to lodge a review after the immigration decision made.

o    I will never be able to see him again.

o    Fatima El-Kheir action is lack of responsibility and costs a huge irreparable damage.

…

1. On 11 April 2024, the applicant provided to the Tribunal a digital national police clearance certificate issued to him by the AFP on 10 April 2024 stating that for immigration/citizenship purposes, there were no disclosable court outcomes recorded against the applicant’s name in the AFP’s record and the records of the police in all Australian states and territories.

2. On 3 June 2024, the Tribunal wrote to the applicant to requested an updated AFP check, and police checks for any other country in which he had lived for at least 12 months in the last 10 years, and/or a completed form 80.

3. On the same date, the applicant responded by email to advise that he had only lived in Australia in the last 10 years, being absent for a 2 month trip to Jordan only during that period. He reattached his AFP clearance dated 10 April 2024 and queried whether he also needed to provide a form 80 in these circumstances.

4. 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 section 360(2)(a) of the Act.

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

CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

1. 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?

1. It is not disputed that the applicant was asked by the Department on 2 occasions in 2023  to provide a statement (or statements) from an appropriate authority in any country where he resided, or had resided, for at least 12 months in the 10 years before he made his visa application, but that he failed to do so.

2. The applicant has provided an explanation to the Tribunal indicating that he was unaware of these requests as neither he nor his former migration lawyer had advised the Department that she no longer acted for him, and thus correspondence for his case (including the requests in 2023) went to her but were not passed on to the applicant.

3. However, the applicant has now provided an AFP national police check indicating that he has no criminal record, issued for the purposes of immigration/citizenship by the AFP on 10 April 2024. He has also advised that he has not lived more than 12 months in any country other than Australia in the 10 years prior to making his visa application on 10 October 2019. The Tribunal has reviewed his Department movement records which corroborate this.

4. Accordingly, the Tribunal finds that the applicant has now provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

Conclusion

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

2. On the basis of the above findings, the Tribunal is satisfied that the applicant meets reg 2.03AA(2).

DECISION

1. The Tribunal remits the application for a GK – Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 482 visa:

   ·Regulation 2.03AA(2).

Alison Mercer
Senior Member