Jandah (Migration)

[2018] AATA 2078

Jandah (Migration) [2018] AATA 2078 (5 June 2018)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wasfi Farhan Ayoub Jandah

CASE NUMBER:  1706584

DIBP REFERENCE(S):  CLF2015/37215

MEMBER:David Barker

DATE OF DECISION:  5 June 2018

DATE CORRIGENDUM

SIGNED:4 July 2018

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The words s.3599(2) at paragraph 20 should be replaced with s.359(2).

David Barker
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wasfi Farhan Ayoub Jandah

CASE NUMBER:  1706584

DIBP REFERENCE(S):  CLF2015/37215

MEMBER:David Barker

DATE:5 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 836 visa:

·Regulation 2.03AA(2)

Statement made on 05 June 2018 at 9:27am

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Character documents – Police certificate not supplied – Canadian National Criminal Record supplied to the Tribunal – No criminal record – Decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 2.03AA Schedule 1 Item 1123B Schedule 2 cl 836.223

statement of decision and reasons

ISSUE

1. The issue in this case is whether the applicant has provided the requested statements by an appropriate authority in Australia, Jordan and Canada that provides evidence about whether or not he has a criminal history in those countries.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

3. The applicant applied for the visa on 23 June 2015. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for an Other Family (Residence) (Class BU) 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.

4. 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.836.223 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in r.2.03AA(2).

5. 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.

6. The delegate refused to grant the visa on 20 March 2017 on the basis that the applicant did not meet r.2.03AA because the applicant failed to provide police certificates from Jordan and Canada, and an Australian Federal Police certificate.

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

   The hearing

8. The applicant gave evidence he was unaware of the need for him to provide a police certificate, prior to his receiving the letter sent to him by the Tribunal on 7 March 2018.  He maintained this evidence during the hearing, despite the Tribunal reading to him from the delegate’s decision and bringing to his attention that he had provided the Tribunal with a copy of this decision.

9. The applicant told the Tribunal he had attempted to get friends in Canada to get a police certificate on his behalf, since becoming aware of the issue in March 2018, but that they were told by the Royal Canadian Mounted Police that unless he was there in Canada requesting the certificate, he would have to apply online and supply his fingerprints to the Canadian authorities.

10. The applicant gave evidence he went to Cabramatta police station and asked for their assistance to get his fingerprints, but they said they could not help him without the proper documentation.  He said they told him they would send the application form, including copies of his finger prints, to the Canadian authorities on his behalf, once he provided them with the completed application form.

11. The applicant told the Tribunal he only accessed the application form to request a Canadian police certificate the day prior to the hearing on 18 April 2018 and that he has not as yet filled out the form or taken it back to the Cabramatta police station to get their help with taking his fingerprints and lodging the application form.

    consideration of claims and evidence

    Has the applicant provided a statement from an appropriate authority?

12. The visa applicant is a national of Jordan and is 44 years old.

13. The Department delegate’s decision record, a copy of which was provided with the review application, states an email was sent to the applicant’s authorised email address on 18 August 2016, requesting he provide evidence of an updated passport, a medical assessment result, and character requirements; specifically an Australian Federal Police certificate, and police certificates from any country where the applicant had lived for a total of 12 months of more In the last 10 years, namely Jordan and Canada.

14. The delegate reports the application was reviewed on 30 September 2016 and it was determined that the applicant had not addressed the requests in the email dated 18 August 2016. An email was sent to the applicant’s authorised email address requesting he provide the same evidence that had previously been requested in the email dated 18 August 2016. An additional request was included, namely that the applicant provide evidence of his marital status, as he had declared his status to be 'separated' in his application but had not supported the declaration.

15. On 24 January 2016, the Department telephoned the applicant to advise that the documents requested on 18 August and 30 September 2016 had not been received. The applicant was advised that the documents were required and he was given a further 28 days to provide the documents.

16. On 1 February 2017, the applicant’s authorised recipient advised the Department that the applicant had lodged an application for a new passport at the Jordanian Embassy in Canberra and that as he could not make an appointment for a medical assessment without it, he requested more time to provide this information. The authorised recipient did not refer to the request for character documents.

17. On 1 February 2017, the Department advised the applicant’s authorised recipient that the date by which the requested evidence needed to be provided could be extended by seven days, as per Migration Regulations and reminded the authorised recipient of the outstanding character requirements and evidence of marital status, as well as the passport and medical requirements.

18. The applicant’s medical assessment result was received on 7 March 2017, but none of the other requested documents, nor a declaration addressing the applicant’s ability or otherwise to provide the requested information was received by the Department within the specified time frame.

19. On 10 March 2017, the applicant provided the Department with a certificate from the Hashemite Kingdom of Jordan, Ministry of Justice and a copy of an updated passport biodata page.  The certificate stated the applicant  has neither been convicted in a dishonourable nor a demoralizing crime or offence with any charge or previous conviction.

20. On 7 March 2018, the Tribunal wrote to the applicant, pursuant to s.3599(2) inviting him to provide, by 3 April 2018, the following information:

    ·evidence of gaining a police certificate from Canada;

    ·an Australian Federal Police certificate; and

    ·evidence to corroborate his claim as to his ‘separated’ marital status.

21. On 29 March 2018, the Tribunal received documents from the applicant including:

    ·    an Australian Federal Police certificate, dated 16 March 2018;

    ·    an Australian Federal Circuit Court, Divorce Order, dated 21 November 2017; and

    ·    a copy of an email to the Canadian Consulate from the authorised recipient, dated 28 March 2018, which enquired as to how the applicant would go about getting a police certificate from Canada.

22. At the hearing on 18 April 2018, the Tribunal received documents from the applicant including a medical report regarding Rimon Gandah, dated 25 January 2018 and a blank Cardscan application form to request a certified criminal record check from the Royal Canadian Mounted Police.

23. The Tribunal gave the applicant until 25 April 2018, to provide further documentary evidence and submissions for the Tribunal to consider before a decision is made in this matter.  The Tribunal invited the applicant to provide information as to how long it would likely take him to get the requested Police check from Canada, in the event he had initiated a request for the specified document.

24. On 26 April 2018 , the Tribunal received further documentary evidence, including: a written statement from the applicant, a copy of a screen shot  from a mobile phone, a copy of a Cardscan Application, dated 18 April 2018, confirmation of a submission of an Electronic Fingerprinting for a Canadian RCMP Certified Criminal Record Check, a Registered Post customer receipt for parcel sent to ‘XL-ID solutions’ in Montreal, Canada and a tax invoice from the NSW Police Service for the cost of a visa applicant fingerprint.

25. The written statement from the applicant provided the following information:

    The Member gave me seven days to provide evidence about my fingerprints.

    I submit the following:

    a)       Application completed for fingerprints which cost me $400;
    b)       A receipt for $44 given to the Police for fingerprints;
    c)       Registered post international application sent to Canada at the cost of $25

    I draw the Member's attention that the requested information are now submitted and I hope that the result will come soon and the Member mentioned to me that he has the discretion to waive it, it is my humble request that I need an early decision because I was under a lot of stress and did not know how to deal with the matter before but as soon as I receive the request from the Tribunal I went to a few police stations such as Fairfield, Bonnyrigg and I could not do it.

    I have evidence on my mobile that I contacted my friend, Joe, in Canada and asked him to provide the evidence for police clearance and on 12 March I sent him copy of my passport and then he approached the Police in the area and was told that I need fingerprints in Australia.

26. On 27 April 2018, the Tribunal wrote to the applicant advising him it had given him until 25 May 2018 to produce the requested Canadian police certificate.

27. On 23 May 2018, the applicant provided the Tribunal with a copy of a letter, dated 9 May 2018 from the Royal Canadian Mounted Police certifying a search of the Canadian National Criminal Records Repository indicated the applicant could not be associated to any existing criminal record of conviction which may be disclosed in accordance with Canadian federal laws.

28. The applicant has provided statements from an appropriate authority from Jordan, Canada and the Australian Federal Police, which were the countries and authority specified by the Department and therefore meets r.2.03AA(2)(a).

29. On the basis of the above findings, the applicant meets r.2.03AA(2).

    decision

30. The Tribunal remits the application for a Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 836 visa:

    ·Regulation 2.03AA(2).

    David Barker
    Member