Hojo (Migration)

[2017] AATA 858

Hojo (Migration) [2017] AATA 858 (1 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mari Hojo

CASE NUMBER:  1702320

DIBP REFERENCE(S):  CLF2017/22480

MEMBER:Wan Shum

DATE:1 June 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

Statement made on 01 June 2017 at 11:52am

CATCHWORDS

Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 – Religious Worker stream – Disclosure of criminal record – Provision of offshore police certificates

LEGISLATION

Migration Act 1958, ss 65, 360(2)(a)

Migration Regulations 1994, r 2.03, r 2.03A, r 2.03AA, Schedule 2, cl 401.216, Public Interest Criteria 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 20 January 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 11 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 at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. 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. The Domestic Worker (Executive) stream is only available for visa applications made on or after 23 March 2013.

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 finding that the applicant did not meet the requirements of cl.401.216 of Schedule 2 to the Regulations. The delegate was not able to assess the applicant against PIC 4001 because the applicant had not provided an overseas police certificate as requested.

5. The applicant has sought review of that decision and provided a Complete Disclosure certificate issued by the Australian Federal Police and a Certificate of Criminal Record from Japan.

6. 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 s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets r.2.03AA.

8. 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.

9. Regulation 2.03AA(1) states that in addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or PIC 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

10. 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. On the information before the Tribunal, the department requested that the applicant provide offshore police certificates for each country where she had lived for a total of 12 months or more in the last 10 years. The delegate was unable to assess the applicant against PIC 4001 because the requested documents had not been provided. 

12. On review, the applicant has provided to the Tribunal a Certificate of Criminal Record from Japan certifying that “according to the fingerprint files currently maintained by the National Police Agency of Japan … does not have any applicable criminal record as of the time of issuance of the certificate”. The date of issue was 11 April 2017. The Tribunal was also provided with a Complete Disclosure National Police Certificate from the Australian Federal Police dated 16 May 2017 indicating that she has no disclosable court outcomes recorded against her name. It states on the certificate that all recorded offences released.

13. As the applicant has now complied with the request to provide the offshore police clearance certificate, the Tribunal finds that the applicant satisfies the criterion in r.2.03AA(2)(a).

14. While the delegate found that the applicant did not satisfy cl.401.216, this finding was made on the basis that the applicant did not provide the requested police certificates and PIC 4001 was unable to be assessed.

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

16. The Tribunal remits the matter with a direction that the applicant satisfies r.2.03AA. The Tribunal remits the application to the Minister to undertake consideration of whether the applicant meets cl.401.216 and the remaining criteria for the grant of a Subclass 401 visa.

    DECISION

17. 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 401 Temporary Work (Long Stay Activity) visa:

    ·Regulation 2.03AA. 

    Wan Shum
    Member