Carr (Migration)

[2020] AATA 2462

Carr (Migration) [2020] AATA 2462 (17 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jacob Carr
Mrs Lainee Carr
Mr Braeden Carr

CASE NUMBER:  1720916

HOME AFFAIRS REFERENCE(S):          CLF2018/46164

MEMBER:Karen Synon

DATE:17 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 408 visa:

·Regulation 2.03AA(2)(a) in relation to Public Interest Criterion 4001 for the purposes for the purposes of cl.408.216 of Schedule 2 to the Regulations.

Statement made on 17 March 2020 at 5:12pm

CATCHWORDS
MIGRATION –Temporary Activity visa – Subclass 408 visa –breached PIC4001 –FBI Clearances provided –AFP National Police Clearance provided – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 2.03, Schedule 2, cl 408.216

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 and Border Protection on 30 August 2017 to refuse to grant the applicants Temporary Activity (Class GG) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 17 February 2017. At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (the Regulations). At least one member of the family unit must satisfy the primary criteria, comprising the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22.

3. The delegate refused to grant the visas on 30 August 2017 on the basis that the first named applicant (‘the applicant’) did not meet PIC 4001 for the purposes of cl.408.216 Schedule 2 to the Regulations because he did not provide evidence of a Police Federal Bureau of Investigation (FBI) Clearance from the United States as requested on 18 April 2017 and 28 June 2017.

4. The applicants applied for review of the primary decision on 7 September 2017 and provided a copy of the department’s decision record.

5. The applicants were represented in relation to the review.

6. On 24 February 2020 the Tribunal contacted the applicant via his authorised recipient and asked that an FBI clearance and a current Australian Federal Police (AFP) National Police Clearance be provided.

7. Relevantly, on 3 March 2020, FBI Clearances dated 11 March 2017 were provided in respect of the applicant and the second named applicant.  Both confirm no criminal records.  On the same day these documents were sent to the Department’s document examination unit for an opinion as to their authenticity.  On 10 March 2020 the Tribunal received advice that these documents are genuine.

8. Further, on 17 March 2020 the applicant provided an AFP National Police Clearance dated 5 March 2020 recording “no disclosable court outcomes”.

9. On this basis, and in accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicant's favour on the basis of the material before it.  It was therefore unnecessary for him to appear before it to give evidence in relation to the decision under review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The criteria for the grant of a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Regulations.

12. Clause 485.216 of Schedule 2 of the Regulations requires the applicant to meet Public Interest Criterion 4001 (PIC 4001).

13. Regulation 2.03AA relevantly provides as follows in relation to PIC 4001.

    Criteria applicable to character tests and security assessments

    (1) In addition to the criteria prescribed by regulations 2.03 and 2.03A , if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

    (2) If the Minister has requested the following documents or information, the person has provided the documents or information:

    (a) a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

    (b) a completed approved form 80.

    Note: For paragraph (a), an example of an appropriate authority is a police force.

    (3) The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.

14. The applicant is therefore required to satisfy the criterion in r.2.03AA(2).  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.  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).

15. The issue before the Tribunal is whether the applicant has provided a statement by appropriate authorities that provides evidence about whether or not he has a criminal history.

16. The applicant has provided to the Tribunal the requested statements from the appropriate authorities being the FBI and the AFP.  The Tribunal notes that while the FBI Clearance is dated 17 March 2017, the Department’s movement records confirm that the applicant has not departed Australia since lodging the visa application on 17 February 2017.

17. The Tribunal is therefore satisfied that the applicant meets r.2.03AA(2)(a).

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

19. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

20. The Tribunal remits the applications for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:

    ·Regulation 2.03AA(2)(a) in relation to Public Interest Criterion 4001 for the purposes of cl.408.216 of Schedule 2 to the Regulations.

    Karen Synon
    Member