Mac Fhionnlaoich (Migration)

[2019] AATA 2625

Mac Fhionnlaoich (Migration) [2019] AATA 2625 (23 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eamonn Pol Mac Fhionnlaoich

CASE NUMBER:  1902796

DIBP REFERENCE(S):  BCC2018/2257777

MEMBER:R. Skaros

DATE:23 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a GK – Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

·Regulation 2.03AA(2)

Statement made on 23 April 2019 at 11:24am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 – police checks – Australian Federal Police (AFP) clearance check – Irish police clearance certificate provided at review – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 482.217, PIC 4001, r 2.03AA(2)

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 a GK – Temporary Skill Shortage (Class GK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 25 May 2018. The criteria for a GK – Temporary Skill Shortage (Class GK) 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.482.217 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 17 January 2019 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide the requested police checks.  

6. The requested police checks have been provided to the Tribunal on review.

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

   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.

9. On 16 July 2018, the applicant was requested to provide an Australian Federal Police (AFP) clearance check and a police clearance certificate from Ireland, where the applicant had indicated he had lived in for a cumulative period of 12 months or more in the last 10 years. The applicant did not provide the requested statements within the timeframe given, consequently, the delegate refused the application.

10. On review, the applicant provided a copy of a National Police Certificate - Complete Disclosure issued by the AFP on 31 January 2019. The certificate records an offence for which the applicant was fined and had his licence disqualified. The applicant has also provided a police certificate from Ireland issued by the Superintendent’s Office on 14 February 2019 indicating that the applicant has not been convicted of any crime or offence while residing in the Republic of Ireland. 

11. Whether the applicant satisfied that character requirements in 4001 is an issue for the Department to consider on remittal of this matter. The issue before this Tribunal is whether the applicant has provided the requested statements from the appropriate authorities about his criminal history. As the applicant has now provided the requested police checks from the relevant authorities in Australia and Ireland, the Tribunal is satisfied that the applicant has provided the required statements from an appropriate authority and therefore meets r.2.03AA(2)(a).

12. There is no evidence that the delegate made a request for the applicant to provide a Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

13. On the basis of the above findings, the applicant meets r.2.03AA(2).

    DECISION

14. The Tribunal remits the application for a GK – Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

    ·Regulation 2.03AA(2).

    R. Skaros
    Member