Lila (Migration)

[2020] AATA 5425

Lila (Migration) [2020] AATA 5425 (29 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rezart Lila
Mrs Floutoura Giatsai

CASE NUMBER:  1828626

HOME AFFAIRS REFERENCE(S):          BCC2018/2633631

MEMBER:Michael Biviano

DATE:29 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

· r.2.03AA(2)(b) of the Regulations.

Statement made on 29 October 2020 at 6:10pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – character assessment – security assessment – police clearance certificate provided upon review – decision under review remitted           

LEGISLATION

Australian Security Intelligence Organisation Act 1979, s 4
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.217, 500.311; Schedule 4, Public Interest Criterion 4002; r 2.03

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 Home Affairs on 17 September 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 13 July 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of r.2.03AA(2) of the Migration Regulations 1994 (the Regulations) because the applicant did not submit a Form 80 - Personal Particulars for character assessment, despite being requested to do so.

4. The delegate did not grant the secondary applicant a student visa on the basis that the primary visa applicant was refused the student visa, and the delegate was not satisfied that cl.500.311 of Schedule 2 of the Regulations was met.

5. The applicants appeared before the Tribunal on 26 October 2020 to give evidence and present arguments.

6. The applicants were assisted in relation to the review by their registered migration agent.

7. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant has satisfied r.2.03AA of Schedule 2 to the Regulations because he had not supplied a completed Form 80 - Personal Particulars for character assessment, despite being requested to do so, to enable a security assessment to be undertaken, in contravention of r.2.03AA of the Regulations.

10. Clause 500.217 provides:

    500.217

    (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.

    (2) If the applicant has not turned 18, public interest criteria 4012A, 4017 and 4018 are satisfied in relation to the applicant.

    (3) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

    (4) The applicant (other than a Foreign Affairs student or a Defence Student) satisfies public interest criterion 4005.

    (5) The applicant, being a Foreign Affairs student or a Defence Student, satisfies public interest criterion 4007.

11. Public Interest Criterion (PIC) 4001 requires s.65 delegates to assess a person against the terms of the ‘character test’. Under policy, a component of assessing a person against PIC 4001 for temporary or permanent migration is the provision of a police clearance certificate for each country in which that person has lived for 12 months or more, over the last 10 years, since turning 16 years of age. A police clearance certificate is a statement provided by the appropriate authority that provides evidence about whether or not the person has a criminal history. This statement is a key source of information in relation to assessing a person’s character.

12. PIC 4002 requires delegates to decide whether PIC 4002 requirements are met. PIC 4002 requires that the applicant is not assessed by ASIO to be directly or indirectly a risk to security within the meaning of s.4 of the Australian Security Intelligence Organisation Act 1979. Under policy, a component of assessing a person against PIC 4002 for temporary or permanent migration is the provision of a completed approved Form 80. The Form 80 is a key source of information about a person’s particulars that enables a security assessment to occur.

13. As the applicant was required to satisfy PIC 4002 for the grant of the visa, r.2.03AA applies. This regulation states:

    Criteria applicable to character tests and security assessments

    (1) In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

    (2) 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.

    Note: For paragraph (a), an example of an appropriate authority is a police force.

    (3) The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.

14. By correspondence dated 19 July 2018 and 17 August 2018, the delegate demanded that the applicants provide a completed Form 80 Document.

15. The delegate refused to grant the student visa because the applicants did not provide the completed Form 80 Document, despite being requested to do so by the delegate on 19 July 2018 and 17 August 2018.

16. As the applicant was required to satisfy PIC 4002 for the grant of the visa, r.2.03AA(1) required the criterion in r.2.03AA(2) to be met, and as the applicant had not supplied the completed form, the delegate found that the applicant had not satisfied the criterion in r.2.03AA(2)(b).

17. The applicant is a 33-year-old Greek national who came to Australia on a tourist visa on 17 February 2018 with his wife, the secondary applicant, and applied for a student visa through an education agent who retained their own migration agent. The applicant claimed that despite following advice given by the agent, they were given incorrect information about obtaining medical information and were not informed by the migration agent of any requirement to file a Form 80 form.

18. The applicants claim they did not receive the requests from the delegate through their agent. The applicants claim that the migration agent who had been retained by the education agent disappeared during the course of the application process with the Department.

19. They subsequently discovered that the visa had been refused and the reasons for the refusal.

20. The applicant had filed their appeal with this Tribunal. The applicants claim that they had completed Form 80 documents in April 2019. The applicants claimed that they believed that their former representative had filed the completed Form 80 documents with the Tribunal in April 2019, through their former representatives. No such documents had been filed.

21. The applicant’s current representative advised them to file updated completed Form 80 documents on the morning of the hearing to ensure that step had been undertaken out of an abundance of caution.

22. On 26 October 2020, on the morning of the hearing, the applicants each filed a completed approved Form 80 document and therefore they now meet r.2.03AA(2)(b) of the Regulations.

23. Given the above findings, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

24. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·r.2.03AA(2)(b) of Schedule 2 to the Regulations.

    Michael Biviano
    Member