Goli (Migration)

[2020] AATA 2863

Goli (Migration) [2020] AATA 2863 (19 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Ceke Goli

Mrs Albana Tefa

Miss Iris Goli

Master Louis Goli

Master Liam Goli

CASE NUMBER:  1936238

HOME AFFAIRS REFERENCE(S):          BCC2018/4776923

MEMBER:Karen Synon

DATE:19 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first and second named applicants meet the following criteria for a Subclass 482 visa:

·Regulation 2.03AA(2) in relation to PIC 4001 for the purposes of cl.482.217(1).

Statement made on 19 April 2020 at 6:40pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – occupation of Painting Trades Worker – valid Australian and Italian Police Clearances – criminal history – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cl 482.217; 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 on 18 December 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 30 October 2018. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the primary visa applicant (the applicant) is seeking the visa in the Medium-term stream[1] to work in the nominated occupation of ‘Painting Trades Worker’.

   [1]Although the primary decision refers in different parts to an application in both the short term stream and the medium term stream.

3. The delegate refused to grant the visas on 14 January 2019 on the basis that cl.482.217 was not met because the applicants had not provided valid Australian Police Clearances and Italian Police Clearance Certificates. This issue is dealt with by Regulation 2.03AA which applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: r.2.03AA(1). Correctly and relevantly, in this case, cl.482.217(1) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The first and second names applicants are therefore required to satisfy the criterion in r.2.03AA(2).

4. The applicants applied for review of the Department’s decision on 23 December 2019 and provided a copy of the primary decision.  The applicants were represented in relation to the review by their registered migration agent.

5. In accordance with s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicants’ favour on the basis of the material before it.  It was therefore unnecessary to invite them to appear before the Tribunal to give evidence in relation to the decision under review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicants satisfy Regulation 2.03AA(2)(a).  This 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.

8. The primary decision records that, at the time of visa lodgement, the applicant did not provide the residential addressees at which the applicants resided prior to their arrival in Australia and, while the applicant and second named applicant provided Australian Federal Police (AFP) Clearance Certificates dated 13 December 2017, these had, by that time, expired.  On 1 July 2019, at the Department’s request, the applicants provided completed Form 80’s which recorded their residency in Italy between 2005 and 2012.  However, at the time of decision, the relevant applicants did not provide valid AFP Clearance Certificates or Italian police clearances.

9. The question for the Tribunal is whether the applicants have provided a statement by an appropriate authority that provides evidence about whether or not they have a criminal history in Australia and/or Italy where they resided between 2005 and 2012.

10. On 10 February 2020 the Tribunal invited the applicant and second named applicant to provide both their AFP Clearance Certificates and Italian police clearances.

11. On 23 February 2020 these documents were provided along with an English translation of the Italian police certificates.  Copies of the Italian police certificates were forwarded to the Department of Home Affairs for verification and on the 11 March 2020 the Tribunal was advised that these documents are genuine.  The AFP Clearance Certificates are dated 17 February 2020.

12. As such the Tribunal is satisfied that the first and second named applicants have now provided Police Certificates from the relevant authorities in the countries where they have resided which provides evidence as to whether or not they have a criminal history.

13. As they have provided statements from the appropriate authorities as requested, the first and second named applicants meet r.2.03AA(2)(a).

14. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

15. The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first and second named applicants meets the following criteria for a Subclass 482 visa:

    ·Regulation 2.03AA(2) in relation to PIC 4001 for the purposes of cl.482.217(1).

    Karen Synon
    Member