Birks (Migration)

[2019] AATA 2926

Birks (Migration) [2019] AATA 2926 (13 May 2019)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Christopher Birks

CASE NUMBER:  1836762

DIBP REFERENCE(S):  BCC2018/2878039

MEMBER:R. Skaros

DATE OF DECISION:  13 May 2019

DATE CORRIGENDUM

SIGNED:14 May 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The Decision on the front page of the Decision Record, ‘The Tribunal affirms the decision not to grant the applicant a GK – Temporary Skill Shortage (Class GK) visa’ should be replaced with:

‘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).’

R. Skaros
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Christopher Birks

CASE NUMBER:  1836762

DIBP REFERENCE(S):  BCC2018/2878039

MEMBER:R. Skaros

DATE:13 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a GK – Temporary Skill Shortage (Class GK) visa.

Statement made on 13 May 2019 at 12:49pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – criminal history – statement by an appropriate authority – Australian Federal Police ‘Complete Disclosure’ check – UK police clearance – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 482.217; 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 GK – Temporary Skill Shortage (Class GK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 1 August 2018. The criteria for a GK – Temporary Skill Shortage (Class GK) 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.482.217 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 12 December 2018 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide the requested police checks.  

6. The requested police check has been provided to the Tribunal on review.

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

9. On 5 September 2018, the applicant was requested to provide an Australian Federal Police ‘Complete Disclosure’ check and a police clearance certificate from the United Kingdom, being the two countries in which the applicant had lived for a cumulative period of 12 months or more in the last 10 years. The applicant did not provide the AFP Complete Disclosure check within the timeframe given, consequently, the delegate refused the application.

10. On review, the applicant provided a copy of a National Police Certificate - Complete Disclosure issued by the AFP on 20 December 2018 which indicates that the applicant has no disclosable court outcomes recorded against his name. The Tribunal notes that the Department’s file indicates that the applicant had provided to the Department the UK police clearance dated 13 August 2018. 

11. As the applicant has now provided the requested police checks from the relevant authorities in Australia and the UK, the Tribunal is satisfied that the applicant has provided the required statements from an appropriate authority and therefore meets r.2.03AA(2)(a).

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

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

    decision

14. 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).

    R. Skaros
    Member