KEIROUZ (Migration)

[2017] AATA 1171

KEIROUZ (Migration) [2017] AATA 1171 (5 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Joseph Keirouz
Mrs Marleine Habchi
Master Charbel Keirouz

CASE NUMBER:  1709704

DIBP REFERENCE(S):  BCC2017/167805

MEMBER:Wan Shum

DATE:5 July 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·r.2.03AA

Statement made on 05 July 2017 at 9:36am

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Police certificate did not match precise spelling of applicant’s name – New certificate provided with correct spelling

LEGISLATION

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

Migration Regulations 1994, r 2.03AA, Schedule 2, cl 186.213, Schedule 4, 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 on 1 May 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 13 January 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa finding that the applicant did not meet the requirements of cl.186.213 of Schedule 2 to the Regulations. This was because the delegate was not able to assess the second named applicant against PIC 4001 as the Australian Federal Police certificate provided did not precisely match the spelling of her given name.

6. The applicants have sought review of that decision and provided a new Australian Federal Police certificate for the second named applicant with her full name correctly spelt.

7. 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

8. One of the criteria for the grant of a Subclass 186 visa is cl.186.213 which requires that the applicant, and each member of the family unit who is an applicant for the visa, 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. The additional criterion in r.2.03AA applies to all current applications.

9. Relevant to the circumstances of this case, r.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.

10. On the information before the Tribunal, the applicants had provided an Australian Federal Police (AFP) National police check with the second named applicant’s given name spelt incorrectly. The department requested that the applicant provide a police clearance with her name and date of birth listed correctly. However, the police check with the name spelt incorrectly was submitted again. The delegate was thus unable to assess the second named applicant against PIC 4001 because the check was not in her legal name. 

11. On review, the applicant has provided a Complete Disclosure National Police Certificate from the AFP dated 5 May 2017 indicating that she has no disclosable court outcomes recorded against her name. It states on the certificate “all recorded offences released”. Her full name is spelt as recorded on her passport.

12. As the applicants have now complied with the request to provide the police check for the second named applicant, the Tribunal finds that she satisfies the criterion in r.2.03AA(2)(a).

13. As the second named applicant has now provided the relevant document, the delegate is now able to assess whether the applicant and the members of his family unit meet PIC 4001 and cl.186.213.

14. The Tribunal remits the matter with a direction that the second named applicant satisfies r.2.03AA. The Tribunal remits the application to the Minister to undertake consideration of whether the applicant meets cl.186.213 and the remaining criteria for the grant of a Subclass 186 visa.

    DECISION

15. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·r.2.03AA.

    Wan Shum
    Member