Felloni (Migration)

[2019] AATA 2297

Felloni (Migration) [2019] AATA 2297 (11 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stefano Felloni

CASE NUMBER:  1901177

DIBP REFERENCE(S):  BCC2018/941692

MEMBER:R. Skaros

DATE:11 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·Regulation 2.03AA(2).

Statement made on 11 March 2019 at 10:19am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – evidence of criminal history police checks – National Police Certificate provided – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360

Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 457.224; Schedule 4, Public Interest Criterion 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 Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 27 February 2018. The criteria for a Temporary Business Entry (Class UC) 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.457.224 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 9 January 2019 on the basis that the applicant did not meet r.2.03AA(2) because the applicant did not provide the requested police checks.

6. The requested police checks have now been provided to the Tribunal on review.

7. 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 s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. On 16 June 2018, the applicant was requested to provide an Australian Federal Police (AFP) clearance check, and a General Penal Certificate (Certificato Generale del Casellario Giudiziale) and Solicitor General Certificate of Pending Charges (Certificato dei Carichi Pendenti della Procura) from the relevant authorities in Italy. The applicant did not provide the requested documents within the timeframe given, consequently, the delegate refused the application.

11. On review, the applicant provided a copy of a National Police Certificate - Complete Disclosure dated 20 August 2018 issued by the AFP. The certificate indicates that there are no disclosable court outcomes recorded against the applicant’s name. The applicant also provided a copy of the General Certificate of Criminal Records issued by the Ministry of Justice, Italy, issued on 10 May 2018 indicating ‘nil offences are registered’ against the applicant’s name. A certificate of pending criminal charges issued by the Italian Republic Prosecutor’s office on 28 January 2019 was also provided indicating there are no pending charges.

12. As the applicant has now provided the requested statements from the appropriate authorities, the requirement in r.2.03AA(2)(a) is therefore met.

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

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

    DECISION

15. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·Regulation 2.03AA(2).

    R. Skaros
    Member