Garrido (Migration)

[2018] AATA 4227

Garrido (Migration) [2018] AATA 4227 (13 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Enjelito Clor Garrido

CASE NUMBER:  1609905

HOME AFFAIRS REFERENCE(S):           BCC2015/1699240

MEMBER:Cathrine Burnett-Wake

DATE:13 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·Regulation 2.03AA(2).

Statement made on 13 September 2018 at 10:07am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – evidence of criminal history – complete disclosure AFP check – NBI police check – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2 cl 186.213, Schedule 4 PIC4001

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 15 June 2016 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 June 2015. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

4. 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.186.213 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).

5. 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.

6. The delegate refused to grant the visa on 15 June 2016 on the basis that the applicant did not meet r.2.03AA(2) because the applicant did not provide a Complete Disclosure certificate from the Australian Federal Police (AFP) and a valid police check issued by the National Bureau of Investigations (NBI), despite being requested to do so. The delegate found that the applicant therefore did not meet r.2.03AA(2)(a), and did not consider it unreasonable for him to do so, so did not waive the requirement to meet r.2.03AA(2)(a) pursuant to r.2.03AA(3). The delegate found that the applicant therefore did not meet PIC 4001 for the purposes of cl.186.213.

7. The Tribunal received a review application from the applicant on 2 July 2016. It was accompanied by a copy of the delegate’s decision.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present 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.

   Has the applicant provided a statement from an appropriate authority?

10. The applicant has provided the Tribunal a Complete Disclosure AFP check issued to him on 1 August 2018. The applicant has also provided the Tribunal with a NBI police check obtained on 20 January 2016 and valid until 20 January 2017. It is noted that the applicant has not been present in the Philippines since the NBI check was issued.

11. Accordingly, the Tribunal is satisfied that the applicant has now provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

12. It is noted that the applicant has previously provided a completed approved Form 80 to the Department, therefore the requirement in r.2.03AA(2)(b) does not apply to the Tribunal’s considerations.

    Conclusion

13. On the basis of the above findings, the Tribunal is satisfied that the applicant meets r.2.03AA(2).

    DECISION

14. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 visa:

    ·Regulation 2.03AA(2).

    Cathrine Burnett-Wake
    Member