Kamat (Migration)

[2019] AATA 5460

Kamat (Migration) [2019] AATA 5460 (28 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jeevach Kamat

CASE NUMBER:  1712451

DIBP REFERENCE(S):  BCC2016/3623464

MEMBER:Phoebe Dunn

DATE:28 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an  Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 visa:

·Regulation 2.03AA(2)(b)

Statement made on 28 November 2019 at 9:08am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – evidence of criminal history – Form 80 not provided to Department after extension of time – provided to Tribunal on review – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA(2)(b), Schedule 2, cl 186.213, Schedule 4, criteria 4001, 4002

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 applicant an Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 31 October 2016. The criteria for an Employer Nomination (Permanent) 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.186.213 of Schedule 2 of the Regulations requires 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 24 May 2017 on the basis that the applicant did not meet r.2.03AA because the applicant failed to provide a completed Form 80 for himself or his non-migrating wife, and therefore did not meet r.2.03AA(2)(b).

6. 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 completed Form 80 for himself and his non-migrating wife.

   Has the applicant provided a completed approved Form 80?

8. According to Departmental records, on 15 March 2017, the applicant was requested by the delegate to provide further information in support of his application within 28 days, including but not limited to a completed Form 80 for himself and his non-migrating wife.  On 7 April 2017, the applicant requested an extension of time within which to do so, and on 12 April 2017, the delegate granted an extension of an additional 28 days.  On 9 May 2017, the applicant requested a further extension of time, which was declined by the delegate on 23 May 2017.  On 24 May 2017, the applicant twice made further requests by telephone for an extension, and was advised by the Department that the request would need to be put in writing along with supporting evidence.

9. On review, the applicant provided a copy of his completed Form 80, for himself and his non-migrating wife, as well as completed Form 80s for the applicant’s children.  On this basis, the Tribunal is satisfied that the applicant has provided a completed Form 80 on the approved form. The applicant therefore meets r.2.03AA(2)(b) for the purposes of cl.186.213.

10. The applicant has provided a completed approved Form 80 and therefore meets r.2.03AA(2)(b).

11. Having found that the applicant now satisfies the criterion on which the delegate refused his visa application, namely r.2.03AA(2)(b), the appropriate course of action is to remit the matter to the Department for consideration.

    DECISION

12. The Tribunal remits the application for an Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 visa:

    ·Regulation 2.03AA(2)(b).

    Phoebe Dunn
    Member