Molloy (Migration)

[2018] AATA 4911

Molloy (Migration) [2018] AATA 4911 (23 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Matthew Patrick Edward Molloy

CASE NUMBER:  1826185

DIBP REFERENCE(S):  BCC2018/1677537

MEMBER:Nicole Burns

DATE:23 October 2018

PLACE OF DECISION:  Melbourne

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 (Working Holiday) visa:

·Regulation 2.03AA(2). 

Statement made on 23 October 2018 at 3:00pm

CATCHWORDS
MIGRATION –  Working Holiday (Temporary) (Class TZ) – Subclass 417 (Working Holiday) visa –  character test and security assessment – police certificates provided – decision under review remitted for reconsideration

LEGISLATION
Marriage Act 1961 (Cth) s 65
Migration Regulations 1994 (Cth) r 2.03AA Schedule 2 cl 417.221 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 30 August 2018 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The applicant, who was born in the United Kingdom (UK), applied for the visa on 16 April 2018. At the time the visa application was lodged, Class TZ contained one subclass, Subclass 417 (Working Holiday). The criteria for a Subclass 417 visa are set out in Part 417 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

4. The delegate refused to grant the visa on 30 August 2018 on the basis that the applicant did not meet cl.417.221(2)(b) of Schedule 2 to the Regulations which require the applicant to meet PIC 4001. Specifically because sub regulation r.2.03AA – applicable to character tests and security assessments - was not met because the applicant failed to provide an AFP clearance certificate and police clearance certificate from each country he had lived in for more than 12 months in the last 10 years, as requested in writing by the delegate on 11 May 2018 and again on 3 July 2018.

5. PIC 4001 provides:

   Either:

   (a)  The person satisfies the Minister that the person passes the character test; or

   (b)  The Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

   (c)  The Minister had decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

   (d)  The Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

6. Regulation 2.03AA provides:

   Reg 2.03AA 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 sub regulation (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.

7. On 7 September 2018 the applicant provided to the Tribunal the following documents:

   a)A UK police certificate dated 14 August 2018 which found ‘no live trace’ in respect of the applicant.  According to the attached letter from superintendent, Head of ACRO Criminal Records Office, National Police Chief’s Council, ‘no trace’ means the applicant does ‘not have any convictions, cautions, final warnings or reprimands’.  A representative from the Department advised the Tribunal in writing on 10 October 2018 that after contacting the relevant UK authorities, Post confirmed the police certificate was genuine.

   b)An AFP National Police certificate issued on 19 August 2018 records ‘no disclosable court outcomes’ in applicant’s name in the records of the AFP and police in all Australian states and Territories as at 15 August 2018. 

8. On the basis of the relevant police statements the Tribunal is satisfied that the requirements of Regulation 2.03AA(2) are met.

9. The Tribunal notes that a completed form 80 is only required if requested by the Minister, as reflected in the wording of the legislation set out above [paragraph 6] and Departmental policy advice on this matter.[1] In this case there is no information on the Departmental file that indicates the delegate has requested a completed form 80 from the applicant and the Tribunal is satisfied that Regulation 2.03AA(2)(b) is not applicable.

   [1] PAM3:Act – Character and security – Regulation 2.03AA, character tests and security assessments, issued on 1 September 2015.

10. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

11. 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 (Working Holiday) visa:

    ·Regulation 2.03AA(2).

    Nicole Burns

    
    

    Member