Gustafson (Migration)

[2017] AATA 1896

Gustafson (Migration) [2017] AATA 1896 (26 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Samantha Andrea Gustafson

CASE NUMBER:  1702970

DIBP REFERENCE(S):  CLF2017/20891

MEMBER:Denise Connolly

DATE:26 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Work (Long Stay Activity) (Class GB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 401 Temporary Work (Long Stay Activity) visa:

·r.2.03AA(2).

Statement made on 26 September 2017 at 11:29am

CATCHWORDS

Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 – Character test – Public Interest Criterion 4001 – Overseas police certificates provided

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulation 1994, r 2.03AA, Schedule 2, cl 401.216, 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 2 February 2017 to refuse to grant the visa applicant a Temporary Work (Long Stay Activity) (Class GB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 November 2016. At the time of application, Class GB contained one subclass: Subclass 401 (Temporary Work (Long Stay Activity)).

3. The criteria for a Subclass 401 visa are set out in Part 401 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by the applicant. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of the four alternative visa streams: the Exchange stream, the Sport stream, the Religious Worker stream, or the Domestic Worker (Executive) stream.

4. In the present case, the applicant is seeking the visa in the Religious Worker stream. This stream provides for the temporary entry of persons who will be full-time religious workers in Australia. The delegate refused to grant the visa on the basis that the applicant could not be assessed as having met cl.401.216 of Schedule 2 to the Regulations because she did not provide evidence of FBI certificates for the purposes of assessing whether she meets the character requirements.

5. The applicant has now provided to the Tribunal a certificate from the US Department of Justice’s Federal Bureau of Investigation (FBI) dated 25 April 2017 for Ms Samantha Andrea Gustafson. The Tribunal noted the FBI Certificate provided expressly states that it ‘DOES NOT PRECLUDE FURTHER CRIMINAL HISTORY AT THE STATE OR LOCAL LEVEL’.  Accordingly the Tribunal wrote to the applicant inviting her to provide information confirming that she has a State Police Clearance for each State in the United States of America in which she has lived for 3 months or more.

6. The applicant has now provided a Criminal History Information Certificate from the state of Florida, Department of Law Enforcement and an Interested Person Report from the state of Alaska, Department of Public Safety. Accordingly 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 s.360(2)(a) of the Act.

7. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. One of the criteria for the grant of a Subclass 401 visa is cl.401.216 which requires that the applicant meets Public Interest Criteria including PIC 4001. Where a person is required to satisfy PIC 4001 for the grant of a visa, there are additional criteria prescribed under r.2.03AA that must be met for the grant of visa. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s criminal history. The additional criterion in r.2.03AA applies to all current applications.  

10. Specifically, regulation 2.03AA(2) provides that 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.

11. The applicant has provided to the Tribunal a completed approved Form 80. It indicates she had lived for a total of 12 months or more in the 10 years before the visa application in the USA, in the states of Alaska and Florida.  

12. The delegate’s decision record indicates that the Department requested that the applicant provide an FBI Certificate but the applicant did not provide the requested document before the primary decision was made. The delegate was therefore unable to assess the applicant against PIC 4001. 

13. The applicant has now provided to the Tribunal copies of an FBI Certificate dated 25 April 2017 revealing no prior arrest data for the applicant. She has also provided a Criminal History Information Certificate from the state of Florida, Department of Law Enforcement, dated 25 August 2017 indicating no relevant criminal records, and an Interested Person Report from the state of Alaska, Department of Public Safety, dated 14 September 2017 recording no criminal history record. 

14. As the applicant has now complied with the request to provide the police clearance certificates regarding her criminal history, for each country and state in the USA where she has lived for a total of 12 months or more in the 10 years before November 2016, the Tribunal finds that the applicant satisfies the criterion in r.2.03AA(2)(a).  

15. The applicant has provided the relevant documents and the delegate is now able to assess whether she meets PIC 4001 and cl.401.216.

16. The Tribunal remits the matter with a direction that the applicant satisfies r.2.03AA(2).

    DECISION

17. The Tribunal remits the application for a Temporary Work (Long Stay Activity) (Class GB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 401 Temporary Work (Long Stay Activity) visa:

    ·r.2.03AA(2).

    Denise Connolly
    Member