Low Suggs (Migration)

[2017] AATA 1128

Low Suggs (Migration) [2017] AATA 1128 (5 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Paula Ann Low Suggs

CASE NUMBER:  1702993

DIBP REFERENCE(S):  CLF2017/22712

MEMBER:Wan Shum

DATE:5 July 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Work (Long Stay Activity) (Class GB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 401 Temporary Work (Long Stay Activity) visa:

·r.2.03AA

Statement made on 05 July 2017 at 9:42am

CATCHWORDS

Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 – Religious Worker stream – Public Interest Criterion 4001 – Overseas police certificate

LEGISLATION

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

Migration Regulation 1994, r 2.03AA, Schedule 2, cl 401.216, 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 2 February 2017 to refuse to grant the visa applicant a Temporary Work (Long Stay Activity) (Class GB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 November 2016.

3. The criteria for a Subclass 401 visa are set out in Part 401 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 only satisfy the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of the four alternative visa streams: the Exchange stream, the Sport stream, the Religious Worker stream, or the Domestic Worker (Executive) stream. The Domestic Worker (Executive) stream is only available for visa applications made on or after 23 March 2013.

4. In the present case, the applicant is seeking the visa in the Religious Worker stream. This stream provides for the temporary entry of persons who will be full-time religious workers in Australia. The delegate refused to grant the visa finding that the applicant did not meet the requirements of cl.401.216 of Schedule 2 to the Regulations. The delegate was not able to assess the applicant against PIC 4001 because the applicant had not provided an overseas police certificate as requested.

5. The applicant has sought review of that decision and provided a criminal history report from the US Department of Justice, Federal Bureau of Investigation.

6. 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

7. One of the criteria for the grant of a Subclass 401 visa is cl.401.216 which requires that the applicant 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. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s criminal history. The additional criterion in r.2.03AA applies to all current applications.  

8. Specifically, regulation 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.

9. On the information before the Tribunal, the department requested that the applicant provide an original police certificate for each country where she had lived for a total of 12 months or more in the last 10 years. The delegate was unable to assess the applicant against PIC 4001 because the requested documents had not been provided. 

10. On review, the applicant has provided to the Tribunal a letter from the US Department of Justice, Federal Bureau of Investigation certifying that “a search of the fingerprints provided by this individual has revealed no prior arrest data at the FBI. This does not preclude further criminal history at the state or local level”. The date of issue was 25 April 2017.

11. As the applicant has now complied with the request to provide the requested statement regarding her criminal history, the Tribunal finds that the applicant satisfies the criterion in r.2.03AA(2)(a).

12. The delegate is now able to assess whether the applicant meets PIC 4001 and cl.401.216.

13. The Tribunal remits the matter with a direction that the applicant satisfies r.2.03AA. The Tribunal remits the application to the Minister to undertake consideration of whether the applicant meets cl.401.216 and the remaining criteria for the grant of a Subclass 401 visa.   

    DECISION

14. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 401 Temporary Work (Long Stay Activity) visa:

    ·Regulation 2.03AA.

    Wan Shum
    Member