Contini (Migration)

[2019] AATA 6325

Contini (Migration) [2019] AATA 6325 (18 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Barbara Contini

CASE NUMBER:  1922894

DIBP REFERENCE(S):  BCC2018/4712170

MEMBER:R. Skaros

DATE:18 December 2019

PLACE OF DECISION:  Sydney

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

·r.2.03AA(2)(a) in respect of Par Anton Henrik Stigell for the purposes of cl.188.213(3) of Schedule 2 to the Regulations.

Statement made on 18 December 2019 at 7:57am

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – character test – statement from an appropriate authority – Complete Disclosure AFP National Police Certificate – General Registry, Principality of Monaco – UK Police Certificate – Swiss Police Certificate – Swedish police certificate – two disclosable court outcomes – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2, cl 188.213; 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 Business Skills (Provisional) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 October 2018. The criteria for the grant of a Business Skills (Provisional) visa is set out in Part 188 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas on 5 August 2019 because the applicant did not satisfy cl.188.213(3) of Schedule 2 to the Regulations. It is a requirement of that clause that each member of the family unit of the applicant who is an applicant for a Subclass 188 visa satisfies Public Interest Criterion (PIC) 4001. Regulation 2.03AA(2)(a) prescribes that where a person is required to satisfy PIC 4001 for the grant of a visa, they must provide a statement (howsoever described) provided by an appropriate authority in a country where they reside, or have resided, that provides evidence about whether or not the person has a criminal history (if such a statement has been requested by the Minister).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether, for the purposes of the criteria in cl.188.213(3), each member of the family unit of the applicant meets r.2.03AA as required to satisfy PIC 4001.

6. Mr Par Anton Henrik Stigell (‘Mr Stigell’), the applicant’s partner, applied for the Subclass 188 visa as a member of the family unit of the applicant. Mr Stigell is therefore required to satisfy PIC 4001.

7. As noted above, r 2.03AA(2)(a) prescribes that where a person is required to satisfy PIC 4001 for the grant of a visa, they must provide the relevant statements from the relevant authorities in the relevant country about their criminal history as requested by the Minister.

8. On 16 and 24 May 2019, Mr Stigell was requested by the Department to provide police certificates from each country where he lived for a total of 12 months or more in the last 10 years, including Sweden. 

9. On 30 April 2019 a Complete Disclosure AFP National Police Certificate dated 5 March 2019 in relation to Mr Stigell was provided to the Department. On 16 June 2019 the applicant’s migration agent had stated in an email to the Department that they will provide the requested police clearance certificates as soon as possible.  Mr Stigell had not provided all the requested information within the period allowed by the delegate. The delegate proceeded to refuse the application on the basis that Mr Stigell did not provide the requested police clearance certificates in compliance with the request made under r.2.03AA. Consequently, the applicant did not meet the criteria in cl.188.213(3).

10. On 16 August 2019 the applicant applied for a review of the Department’s decision.

11. On review, the applicant provided a copy of her and Mr Stigell’s Complete Disclosure AFP National Police Checks dated 16 April 2019 and 5 March 2019 respectively stating that there were no disclosable court outcomes in relation to each of them.

12. The Tribunal also received a copy of a police certificate in relation to Mr Stigell issued on 21 August 2019 by the General Registry, Principality of Monaco indicating nil convictions. An English translation accompanied the police certificate.

13. On 3 December 2019 the Tribunal received a copy of a UK Police Certificate dated 27 November 2019 stating that there is ‘no trace’ of convictions in relation to Mr Stigell.  The Tribunal also received a copy of a Swiss Police Certificate indicating Mr Stigell is ‘not registered in the criminal record’.

14. The applicant also provided the Tribunal with a copy of a Swedish police certificate, issued on 23 October 2019, by the Swedish Police in relation to Mr Stigell. This certificate was accompanied with an English translation. This certificate records that there are two disclosable court outcomes for Mr Stigell.  The first was for being complicit in acting disloyally towards authority resulting in imprisonment of one year and six months.  The second was for tax evasion and bookkeeping offences resulting in imprisonment of one year and six months.

15. The Tribunal finds that Mr. Stigell has now provided the requested statements from appropriate authorities about whether or not he has a criminal record.

16. The Tribunal is not assessing whether or not Mr Stigell meets the character requirements in PIC 4001, but is determining whether Mr Stigell provided the relevant statements from the appropriate authorities regarding his criminal record as requested by the delegate of the Minister. As the requested documents have now been provided, the Tribunal is able to remit the matter to the Department for further consideration. Upon remittal of this matter to the Department, further assessment will be made regarding the remaining criteria for the grant of the visa.

17. As Mr Stigell has provided the requested statements, the Tribunal finds that the requirement in r.2.03AA in relation to Mr Stigell, for the purposes of cl.188.213(3), has been met.

    DECISION

18. The Tribunal remits the application for a Business Skills (Provisional) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 188 visa:

    ·r.2.03AA(2)(a) in respect of Par Anton Henrik Stigell for the purposes of cl.188.213(3) of Schedule 2 to the Regulations.

    R. Skaros
    Senior Member