KAMAL SHAH (Migration)

[2019] AATA 3306

KAMAL SHAH (Migration) [2019] AATA 3306 (25 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MOHD SHAFIQ ASHRAF BIN KAMAL SHAH

CASE NUMBER:  1902993

DIBP REFERENCE(S):  BCC2018/955786

MEMBER:Karen McNamara

DATE:25 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 25 July 2019 at 10:20am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – criminal history certificate – no genuine attempt to obtain certificate – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), cl 457.224, r 2.03AA, Public Interest Criterion (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 to refuse to grant Mr Mohd Shafiq Ashraf Bin Kamal Shah (the applicant) a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 February 2018. The criteria for a Temporary Business Entry (Class UC) 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.457.224 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).

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 22 January 2019 on the basis that the applicant did not meet r.2.03AA because the applicant failed to provide a police clearance certificate or other statement (however described) provided by an appropriate authority in each of the countries where the applicant had resided for a total of 12 months or more in the last 10 years.

6. The applicant lodged a review application with the Tribunal on 10 February 2019, within time, and provided the Tribunal with a copy of the delegate's decision to refuse the visa.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant has provided a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history in all countries of residence.

   Has the applicant provided a statement from an appropriate authority?

9. The applicant is a Malaysian citizen. On 28 February 2018, the applicant applied for a Subclass 457 – Temporary Work (Skilled) visa.

10. On 14 September 2018, the Department requested the applicant to provide police certificates from each country where he had lived for a total of 12 months or more in the last 10 years, as evidence that he had satisfied the character requirements.

11. To meet cl.457.224 of Schedule 2 to the Regulations, the visa application must be accompanied by evidence that each applicant and each person included in the application who is at least 16 has applied for an Australian Federal Police check.

12. On 10 February 2019, the applicant provided to the Tribunal a National Police Certificate issued by the Australian Federal Police on 19 October 2018.

13. In addition to the requirement that the applicant must have applied for the Australian Federal Police check before the visa application was lodged, r.2.03AA (2)(a) requires that, if requested, the applicant has provided a statement (however described) 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.

14. Department records show that the applicant made an application on 6 October 2018 to the Ministry of Foreign Affairs, Malaysia for a Certificate of Good Conduct, however there is no evidence before the Tribunal as to the outcome of this application.

15. On 23 April 2019, the Tribunal wrote to the applicant, inviting him to provide a copy of the Certificate of Good Conduct issued by the Malaysian Government. The Tribunal requested the provision of this information by 7 May 2019.

16. On 2 May 2019 the applicant advised the Tribunal that he was unable to provide the requested information by the due date and that he required additional time. The applicant followed up this request by email on 2 May 2019 advising “ I did called [sic] them and they said the application is still in progress, they couldn’t send the softcopy and they couldn’t update with me about the lead time, but probably would take few months and they will sent [sic] the certificate (physical letter) to my Malaysia address. And my relatives will send the letter back to here (Australia).”

17. On 13 May 2019 the Tribunal wrote to the applicant advising that it had considered his email of 2 May 2019 and that an extension was granted until 2 July 2019 for the provision of the information.

18. On 1 July 2019, the applicant advised the Tribunal that he had contacted the Malaysian Government regarding his application for a Certificate of Good Conduct. The applicant provided an email dated 14 June 2019 from SKB Unit (Letter of Good Conduct) Ministry of Foreign Affairs, Malaysia advising inter alia that processing would take approximately 1 to 2 months to complete.  

19. On 2 July 2019 the Tribunal invited the applicant to attend a hearing scheduled on 22 July 2019.

20. The applicant appeared before the Tribunal on 22 July 2019 to give evidence and present arguments.

21. The Tribunal told the applicant that it had been nine months since he had made his application with the Malaysian Government for a Certificate of Good Conduct and despite the Tribunal affording him extension of time to provide the certificate, according to the recent information that he had provided to the Tribunal, it will still take approximately 1 to 2 months for his application to be processed. The applicant was invited to respond to the Tribunal’s observation that nine months had lapsed and he had still not provided a statement from a relevant authority in Malaysia about whether or not he has a criminal history.

22. The applicant told the Tribunal that his application of 6 October 2018 was no longer valid as he had submitted incorrect information in the form of photographs and that he was required to submit a new application. A new application would take approximately 1 to 2 months as advised in the Ministry of Foreign Affairs, Malaysia email of 14 June 2019. The applicant told the Tribunal that he has not submitted a new application.

23. The applicant told the Tribunal that he did not follow up on the progress of his 6 October 2018 application because he had a lawyer processing his visa application and the lawyer should have advised him that there was a problem.

24. Following the hearing, the applicant provided via email on the 22 July 2019, an email dated 4 February 2019 to his former migration agent and her response. The Tribunal notes there is no reference contained in this correspondence as to the requirement to provide a Certificate of Good Conduct from the Malaysian Government or enquiry into the status of the 6 October 2018 application.

25. The Tribunal has had regard to the documentary evidence provided by the applicant on the Department and Tribunal files and also the oral evidence given by the applicant at the Tribunal hearing. In consideration of the evidence before it, the Tribunal finds that the applicant has not provided a statement from an appropriate authority in a country where the applicant has resided. In this case the applicant has resided in Malaysia.

26. As the applicant has not provided a statement from an appropriate authority, therefore he does not meet r.2.03AA(2)(a). The Tribunal has therefore considered whether it would not be reasonable for the applicant to provide the statement, and whether the requirement to provide it, should be waived.

    Is it 'not reasonable' for the applicant to provide a police certificate from Malaysia?

27. Under r.2.03AA (3), the Minister (or Tribunal) may waive the requirement to provide a statement from the appropriate authority (r.2.03AA (2)(a)) where satisfied that it is not reasonable for the applicant to do so.

28. What constitutes 'not reasonable' is a matter for the decision maker to determine having regard to any relevant circumstances. The Explanatory Statement to the Regulation that introduced r.2.03AA provides one example, where the applicant's country is affected by a civil conflict and it may not be reasonable to require the person to provide the statement. This is not a relevant example in the applicant’s case.

29. The Tribunal accepts that the applicant relied on his former migration agent to advise him of the necessary requirements and information required by the Department for the processing of his visa application. The Tribunal further accepts that the applicant initially made an application to the relevant Malaysian Authority on 6 October 2018 for a Certificate of Good Conduct as requested by the Department on 14 September 2018.

30. However the Tribunal noted that despite the Tribunal’s requests to the applicant to provide the Certificate of Good Conduct, the applicant did not disclose to the Tribunal until the hearing of 22 July 2019 that his application of 6 October 2018 was invalid and that he had not made a subsequent application.

31. Having considered this information, the Tribunal has formed the view that the applicant has not made a genuine attempt to provide a Malaysian Certificate of Good Conduct and that it is reasonable for the applicant to provide the relevant statement from the relevant authorities in Malaysia where he is a Malaysian national.

32. The applicant was initially requested by the Department to provide a police certificate from Malaysia on 14 September 2018. He made an application to the Ministry of Foreign Affairs, Malaysia on 6 October 2018 for a Certificate of Good Conduct. The Tribunal notes that following its request of 23 April 2019 to the applicant to provide the Certificate, at the applicant’s request, the Tribunal provided the applicant additional time to provide this certificate. However it was not until the hearing on 22 July 2019, the applicant advised that his initial application was invalid and that he had not submitted a subsequent application. On the basis of this evidence, the Tribunal finds the applicant has not provided persuasive evidence to support that he has made a genuine attempt to obtain the certificate nor does he have an immediate or short-term intention of providing the requested Certificate of Good Conduct.

33. The Tribunal having considered the evidence before it, is not satisfied that it is not reasonable for the applicant to provide the requested statement from an approved authority. The waiver in r.2.03AA(3) does not apply. Therefore, as the statement has not been provided, the applicant does not meet r.2.03AA(2)(a).

    Conclusion

34. On the basis of the above findings, the applicant does not meet r.2.03AA(2).

    DECISION

35. The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

    Karen McNamara
    Member