Florea (Migration)

[2019] AATA 4531

Florea (Migration) [2019] AATA 4531 (26 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Madalina Florea

CASE NUMBER:  1913167

DIBP REFERENCE(S):  BCC2018/6004438

MEMBER:Nicola Findson

DATE:26 July 2019

PLACE OF DECISION:  Perth

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

·Regulation 2.03AA(2)

Statement made on 26 July 2019 at 10:28am

CATCHWORDS
MIGRATION –Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – Romanian police clearance certificate provided – no criminal record – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994(Cth), r 2.03AA(2), Schedule 2, cl 408.216, 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 Activity (Class GG) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 January 2019. The delegate refused to grant the visa on 6 May 2019.

3. The delegate made the decision on the basis that no evidence of a Romanian police clearance certificate had been provided by the applicant as requested and required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations). 

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 27 May 2019.

5. 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 to invite the applicant to appear before the Tribunal.

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

   ISSUES

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

8. Clause 408.216 of Schedule 2 of the Regulations requires the applicant to meet Public Interest Criterion 4001 (PIC 4001).

   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.

9. 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).

10. It follows that the issue to be determined by the Tribunal 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.

    CONSIDERATION

    Has the applicant provided a statement from an appropriate authority?

11. On 27 February 2019, the applicant was requested by the Department to provide police certificate(s) from each country in which she had lived for a total of 12 months or more in the last 10 years.  The applicant provided a police certificate from the United States of America. However, at the time the delegate made his decision, she had not provided a Romanian police certificate.

12. The Tribunal is satisfied that the Department requested the applicant to provide a statement by an appropriate authority in Romania about whether or not she has a criminal history. The applicant therefore has to provide the requested statement to meet r.2.03AA of the Regulations. 

13. On 28 June 2019, the Tribunal received a translation of a certificate from the Ministry of Internal Affairs of Romania dated 21 June 2019, stating, among other things, that the applicant has no criminal record. There is no material before the Tribunal to indicate that this document is not genuine.

14. As the applicant has now provided the requested statement from the appropriate authority she meets r.2.03AA(2)(a).

15. 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.

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

17. Accordingly, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 408 visa.

    DECISION

18. The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 visa:

    ·Regulation 2.03AA(2)

    Nicola Findson
    Member