Murphy (Migration)

[2020] AATA 3609

Murphy (Migration) [2020] AATA 3609 (31 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Conor Murphy

CASE NUMBER:  1828722

DIBP REFERENCE(S):  BCC2018/1411420

MEMBER:Melissa McAdam

DATE:31 August 2020

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 31 August 2020 at 10:22am

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – criminal history statements and Form 80 provided to department by applicant – personal declaration requested by department not provided – personal statement not covered by regulation, so failure to provide it not a breach – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(2), Schedule 2, cl 417.221(2)(b), Schedule 4, criterion 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 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 March 2018. The criteria for a Working Holiday (Temporary) (Class TZ) 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.417.221of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. 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 12 September 2018 on the basis that the applicant did not meet r.2.03AA because he had not provided a requested declaration regarding a criminal conviction he had disclosed in his visa application.

   Background

6. The applicant entered Australia on 7 April 2017 on a subclass 417 Working Holiday visa, valid until 7 April 2018.

7. On 26 March 2018, in Australia, he applied for a further Working Holiday visa. In his visa application he disclosed that he had been charged with an offence awaiting legal action.

8. On 1 May 2018 the Department Delegate wrote to the applicant requesting him to provide the following materials:

   -An Australian Federal Police clearance National Police Check;

   -Police clearance certificates for each country the applicant has lived in for 12 months or more in the past ten years; and

   -A declaration by the applicant regarding specified details of the offence.

9. Sometime before 13 August 2018 the applicant submitted the following documents to the Department:

   -An Australian Federal Police (AFP) ‘National Police Certificate’, dated 24 May 2018;

   -A police clearance certificate from authorities in Ireland, dated 5 March 2018; and

   -A ‘Personal Particulars for Assessment Including Character Assessment’ (Form 80), completed by the applicant.

10. The Irish police clearance states that the applicant was not convicted of any crime while residing in Ireland.

11. The AFP National Police Certificate states that the applicant was subject to two disclosable court outcomes for two offences at Waverley Local Court on 27 March 2018 and sets out the Court results for each offence.

12. In the Form 80 the applicant declared that he had been convicted of two offences. He named the offences and set out the penalties and penalty periods he had received. 

13. On 13 August 2020 the Delegate wrote to the applicant requesting, within 28 days, outstanding information, namely a declaration by the applicant as to:

    - all relevant details about the matter

    - if the matter relates to criminal conviction(s) or offence(s), in relation to each offence:

    - the date of the offence and the date of the conviction (if convicted)

    - the nature of the offence, including a personal account of the events leading up to and including the offence, and the reasons for the offending behaviour

    -full details of any sentence or penalty imposed. 'Sentence' includes any form of determination of the punishment for an offence. The statement should include whether a fine was imposed (and the monetary amount), whether a period of imprisonment, detention, periodic detention or home detention was imposed (and for what period of time), whether a sentence or suspended sentence involving, for example, community service or a good behaviour bond was imposed (and for what period of time), any details regarding probation periods, or electronic tagging

    - if subject to a probation order or conditional sentence, written permission from relevant authorities stating that there is no impediment for travel any other relevant information that relates to the offence, including:

    - sentencing remarks from relevant courts

    - evidence of rehabilitation.

14. The applicant did not provide this personal declaration. 

15. In her decision the Delegate found that because the applicant had not provided this declaration she was unable to be satisfied that the applicant met Regulation 2.03AA in full.  She found that he did not satisfy Regulation 2.03AA in full and that she was unable to assess the applicant against Public Interest Criterion 4001. She decided that because the applicant could not be assessed as to whether he satisfied Public Interest Criteria 4001, he failed to meet Regulation 417.221(2)(b) and thereby Regulation 417.221 in its entirety.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in this case is whether the applicant satisfies r.2.03AA(2). 

17. Regulation 2.03AA(2) requires an applicant to provide a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history and/or a completed Form 80, as requested.  Of these specified materials the Delegate requested an AFP National Police Check and Police Clearance Certificates.

18. The applicant provided these materials as requested, in that he provided the AFP National Police Certificate and a police clearance from Ireland, the country in which he had lived in for 12 months or more in the past ten years.

19. The applicant did not provide the requested personal declaration regarding further details of the offences he had been charged and/or convicted of.  However this material is not covered by r.2.03AA(2).  His failure to provide the requested declaration does not amount to a breach of r.2.03AA(2).

20. In submitting the AFP National Police Certificate and the Irish Police Clearance the applicant has provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

21. There is no evidence that the Delegate made a request for the applicant to provide a completed approved Form 80 (although the applicant did provide one), therefore the requirement in r.2.03AA(2)(b) does not apply.

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

    DECISION

23. 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).

    Melissa McAdam
    Member