Ghamri (Migration)

[2023] AATA 183

Ghamri (Migration) [2023] AATA 183 (2 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zacharie Ghamri

CASE NUMBER:  2201010

HOME AFFAIRS REFERENCE(S):          BCC2020/645071

MEMBER:Stephen Witts

DATE:2 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

Statement made on 02 February 2023 at 1:19pm

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – criminal history – Australian Federal Police check and Belgian Police Certificate not provided – earlier warrant issued for the applicant’s arrest – no reasonable explanation for not providing clearances – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 417.221; Schedule 4, Public Interest Criterion 4001; r 2.03

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 Home Affairs to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 March 2020. The criteria for a Working Holiday (Temporary) (Class TZ) visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (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: reg 2.03AA(1). In this case cl. 417.221 Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in reg 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 reg 2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 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 7 January 2022 on the basis that the applicant did not meet reg 2.03AA because the delegate contended that the applicant did not satisfy PIC 4001 and therefore did not meet subclause 417.221 of the Migration Regulations.

6. The applicant attended the hearing on 2 February 2023 to give evidence and present arguments.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   consideration of claims and evidence

8. 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.

   Has the applicant provided a statement from an appropriate authority?

9. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

10. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision record by the applicant that indicated that the applicant was refused a subclass 417 visitor visa on the basis that on 6 April 2020 he was requested to provide a National Police Certificate from the Australian Federal Police, and police certificates from each country where he has lived for 12 months or more in the last 10 years. According to the delegate on 16 May 2020 the applicant provided a nationally coordinated criminal history check certificate which the delegate contended was not acceptable for immigration purposes.

11. According to the delegate it made a further request on 11 June 2020 and no response was received by the applicant. According to the delegate on that basis the applicant failed to satisfy sub regulation 2.03AA, and that he also failed to satisfy PIC 4001 and therefore he failed to meet Regulation 417.221 in its entirety.

12. The Tribunal further notes that on 15 March 2022 it wrote to the applicant requesting him to provide an Australian Federal Police Clearance National Police Check by 16 May 2022. The Tribunal notes that no response was received to this.

13. The Tribunal also notes material in the Tribunal file from Australian Border Force dated 17 March 2022 indicating that the applicant failed to appear before court on a criminal charge and that a bench warrant has now been issued for his arrest. The Tribunal also notes that a further communication was received from the Department dated 2 May 2022 indicating that the applicant has not been located and that a warrant for his arrest remains in effect. It was stated that the original charges relate to failing to comply with a direction under the Emergency Management Act and other charges with a release date from prison on bail of 7 January 2022.

14. At the hearing the Tribunal had a discussion with the applicant regarding his application.

15. The applicant stated that he did not provide the necessary police clearance certificates from the AFP or from overseas, particularly from Belgium where he used to reside, as he did not understand what was required of him at that time but that now he does. He stated that the material that he did provide may relate to Western Australia.

16. He stated that he is currently working as a barista in a coffee shop and living and playing music in Byron Bay. He stated that his sister is here in Australia, that he has worked in special education with children while here, and he would like to stay in Australia for some time.

17. In regard to the above issues relating to the warrant referred to above he stated that he was arrested by the Western Australian police for breaching quarantine regulations in place during the pandemic.

18. The Tribunal has considered the matter carefully noting that the Department has appropriately requested that the applicant provide specific information which the applicant did not provide without, in the Tribunal’s assessment, legitimate reasons for not doing so. The Tribunal further notes that this request made by the Department in May 2020 predates the issues referred to above.

19. On the basis that the request made by the Department for the information was lawfully made and executed in the appropriate manner the Tribunal finds that the applicant has not provided a statement from an appropriate authority and therefore does not meet reg 2.03AA(2)(a).

20. The Tribunal has therefore considered whether it would not be reasonable for the applicant to provide the statement, and whether the requirement to provide it should be waived.

21. The Tribunal notes that the applicant has stated that he was not aware of the full implications of what he was being asked to provide. The Tribunal had a detailed discussion with the applicant about this matter and finds that the applicant has not provided any evidence as to why he did not at the time try to provide the correct information considering that he was contacted in the appropriate manner and given the appropriate amount of time to provide information.

22. The Tribunal finds after careful consideration that it was reasonable as outlined above to require the applicant to provide the statements requested and that the applicant did not have a reasonable explanation under the circumstances for not doing so.

23. The Tribunal is not satisfied that it is not unreasonable for the applicant to provide the requested statement from an approved authority. The waiver in reg 2.03AA(3) does not apply. Therefore, as the statement has not been provided, the applicant does not meet reg 2.03AA(2)(a).

    Conclusion

24. On the basis of the above findings, the applicant does not meet reg 2.03AA(2).

    decision

25. The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

    Stephen Witts
    Member