Franco (Migration)

[2019] AATA 597

Franco (Migration) [2019] AATA 597 (19 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gabriele Franco

CASE NUMBER:  1902432

DIBP REFERENCE(S):  BCC2018/556850 BCC2018/556850,

MEMBER:Mr S Norman

DATE:19 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the Department decision, and 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 19 February 2019 at 12:55pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – character test – penal clearance – police clearance issued by State of NSW – Australian Federal Police National Police Check lodged with the Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 457.224; 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 on 27 November 2018 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 1 February 2018. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.457.224(1) was not met.

4. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. As noted above, the delegate refused the visa application on 27 November 2018. The applicant was then notified but the applicant did not apply for merits review until 4 February 2019. However, the applicant’s migration agent submitted, and the Tribunal accepts, that the Department decision notification did not inter alia advise the applicant of his ‘rights for appeal’[1] (or review), that the applicant was therefore incorrectly notified, and that the merits review application was therefore ‘lodged within time’.

   [1] Tribunal – folio 28.

7. That being said, the issue in this case is cl.457.224(1), and in particular whether PIC 4001 has been satisfied. Clause 457.224(1) stated:

   457.224 

   (1)  The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4006A, 4010, 4013, 4014, 4020 and 4021.

   (2)  If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

8. Relevant to this case, PIC 4001 stated:

   4001

   Either:

   (a)  the person satisfies the Minister that the person passes the character test; or

   (b)  the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

   (c)  the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

   (d)  the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test

9. Therefore, PIC 4001 requires the assessment of a visa applicant against the terms of the ‘character test’. Also relevant to this case, r.2.03AA stated:

   Reg 2.03AA 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.

10. Under policy, the statement (referred to in r.203AA(2)(a)), is a penal clearance, a military certificate or a military discharge certificate. A “penal clearance” usually refers to a police certificate that is an official record of criminal (or no criminal) convictions. A penal clearance is also known as a penal certificate, police certificate or a police clearance. A penal clearance should include:

    ·     all names by which the visa applicant has ever been known and 

    ·     spent convictions, if the laws of that country permit disclosure of spent convictions for migration/visa purposes.[2]

    [2] ‘What are penal clearances and military certificates’, PAMS.

11. The applicant applied for a Temporary Business Entry (Class UC) on 1 February 2018. In their decision, the delegate said the applicant claimed that since he had turned 16 years of age, he had resided for a cumulative period of 12 months or more, over the last ten years, in both Italy and Australia. The applicant had then lodged a certificate from the Italian ‘Ministry of Justice, Information System of Criminal Records’, noting that no records existed in relation to the applicant.

12. The delegate then said that on 11 July 2018, the applicant was requested to provide inter alia a Australian Federal Police National Police Check. The applicant had been advised that the police clearance they had provided was issued by the State of NSW and therefore not acceptable. The delegate also said that on 23 July 2018, the applicant lodged the same police clearance as had been lodged previously.

13. The delegate continued that in order to satisfy PIC 4001 for the grant of the visa, r.2.03AA(1) required that the criterion in r.2.03AA(2) must be met, unless r.2.03AA(3) applied. The Minister had not waived the requirement in r.2.03AA(2). It was then said the applicant had not lodged a police clearance certificate or other statement (howsoever described) provided by an appropriate authority in Australia, that provided evidence about whether the applicant had a criminal history in Australia. Therefore, the delegate was not satisfied the applicant satisfied the criterion in r.2.03AA(2).

14. The evidence on the Department file included a poor electronic copy of a National Police Certificate signed by an officer of the NSW Police Force. Irrespective of same, with the Tribunal the applicant had lodged a National Police Certificate dated 13 July 2018,[3] from the Australian Federal Police, which had indicated there were ‘no disclosable court outcomes recorded against’ the applicant.

    [3] Tribunal – folio 8.

15. Accordingly, the Tribunal is satisfied that r.2.03AA(2) has been met.

16. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

17. The Tribunal sets aside the Department decision, and 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).

    Mr S Norman
    Member