I Like Ramen Pty Ltd (Migration)

[2019] AATA 3827

I Like Ramen Pty Ltd (Migration) [2019] AATA 3827 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  I Like Ramen Pty Ltd

VISA APPLICANT:  Ms Desiree Lopez Martinez

CASE NUMBER:  1904992

DIBP REFERENCE(S):  BCC2018/5143081

MEMBER:K. Chapman

DATE:13 August 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a GK – Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 482 visa:

·Regulation 2.03AA(2).

Statement made on 13 August 2019 at 8:38am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482– Complete Disclosure National Police Certificate provided – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 2.03, Schedule 2, cl 482.317

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 to refuse to grant the visa applicant a GK – Temporary Skill Shortage (Class GK) visa under s.65 of the Migration Act 1958 (‘the Act’).

2. The visa applicant applied for the visa on 19 November 2018 as a secondary visa applicant. She is currently offshore. The visa applicant is sponsored for the visa by the review applicant. The criteria for a GK – Temporary Skill Shortage (Class GK) visa are set out in Schedule 2 to the Migration Regulations 1994 (‘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: r.2.03AA(1). In this case, cl.482.317 of Schedule 2 of the Regulations requires the visa applicant (‘the applicant’) to meet PIC 4001 and 4002. The applicant is therefore required to satisfy the criterion in r.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 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.

5. The delegate refused to grant the visa on 26 February 2019 on the basis that the applicant did not meet r.2.03AA, because she failed to provide a police clearance from the Australian Federal Police (AFP) despite being requested to do so.

6. The Tribunal did not consider a hearing to be necessary in this matter, 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. Accordingly, 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 applicant has provided a statement by an appropriate authority that provides evidence concerning if she has a criminal history. Specifically, the Tribunal must determine whether she has provided a police clearance certificate from the AFP.

   Has the applicant provided a statement from an appropriate authority?

8. The delegate requested the applicant to provide Spanish, Dutch and Australian police clearance certificates in connection with her visa application. She failed to provide the latter to the delegate.

9. The applicant provided to the Tribunal a Complete Disclosure National Police Certificate from the AFP dated 19 April 2018. It is contained at folio 32 of the Tribunal’s file. The Certificate indicates there are no disclosable court outcomes recorded against the name of the applicant.

10. As the applicant has now provided a statement from an appropriate authority, with respect to Australia, she therefore meets the requirements of r.2.03AA(2)(a).

    Conclusion

11. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

12. On the basis of the above findings, the applicant satisfies r.2.03AA(2).

    DECISION

13. The Tribunal remits the application for a GK – Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 482 visa:

    ·Regulation 2.03AA(2).

    K. Chapman
    Member