McCormack (Migration)

[2021] AATA 3159

McCormack (Migration) [2021] AATA 3159 (10 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Niamh McCormack

CASE NUMBER:  2107535

HOME AFFAIRS REFERENCE(S):          BCC2021/2184834

MEMBER:Tania Flood

DATE:10 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 visa:

·Regulation 2.03AA(2)

Statement made on 10 August 2021 at 10:21am

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – criminal history – Australian Federal Police check and Irish Police Certificate provided upon review – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA; Schedule 2, cl 417.211; 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 Home Affairs to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 27 August 2020. The criteria for a Working Holiday (Temporary) (Class TZ) visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (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: reg 2.03AA(1). In this case, cl.417.211(2)(b) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001, 4002, 4003, 4004, 4005, 4010, 4013, 4014, 4019 and 4020. The applicant is therefore required to satisfy the criterion in reg 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 reg 2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 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 27 May 2021 on the basis that the applicant did not meet reg 2.03AA because she did not provide the requested Police Clearance Certificate and overseas penal certificate. 

6. The Tribunal did not consider a hearing to be necessary as it was able to remit the matter on the material before it.

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.

   Has the applicant provided a statement from an appropriate authority?

9. On 4 December 2020 the applicant was requested by the Department to provide a Police Clearance Certificate and overseas penal certificate.  As she did not do so the delegate found she did not satisfy Regulation 2.03AA.

10. On 15 July 2021 the applicant provided to the Tribunal an Australian Federal Police (AFP) check and an Irish Police Certificate.  The AFP certificate certifies that there are no disclosable court outcomes against the applicant’s name as at 9 June 2021.  A Police Certificate issued by An Garda Siochana Superintendent’s Office on 17 June 2021 states that the applicant was not convicted of any crime while residing in Ireland.

11. The applicant has provided the requested statements from an appropriate authority and therefore meets reg 2.03AA(2)(a).

    Conclusion

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

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

    DECISION

14. The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 visa:

    ·Regulation 2.03AA(2).

    Tania Flood
    Member