Nelson (Migration)

[2023] AATA 129

Nelson (Migration) [2023] AATA 129 (9 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Robert Sinclair Nelson

CASE NUMBER:  2216532

HOME AFFAIRS REFERENCE(S):          BCC2020/2629538

MEMBER:Alison Mercer

DATE:9 January 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 408 visa:

·regulation 2.03AA(2) in relation to Public Interest Criterion 4001 for the purposes of cl.408.216(1).

Statement made on 9 January 2023 at 6:25pm

CATCHWORDS

MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history – UK Police Certificate provided upon review – decision under review remitted        

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 408.216; Schedule 4, Public Interest Criterion 4001; r 2.03AA

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 Temporary Activity (Class GG) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 12 November 2020. The criteria for a Temporary Activity (Class GG) 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.408.216(1) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. 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 24 October 2022 on the basis that the applicant did not meet reg 2.03AA because the applicant did not provide a police clearance from the United Kingdom despite being requested to do so by the Department on 29 March 2022, and despite providing a receipt indicating that he had applied for one. The delegate found that it was not reasonable to disregard this requirement.

6. The Tribunal received a review application from the applicant on 11 November 2022. It was accompanied by a copy of the delegate’s decision, an Australian Federal Police (AFP) clearance issued on 30 March 2022 stating that there are no disclosable outcomes recorded for him, a United Kingdom police clearance issued on 3 May 2022 stating that the applicant has no records, and a statement from the applicant, as follows:

   …

   I am writing a letter of support in regards to the refusal of my application for a Temporary Activity Visa (Subclass 408), submitted on 12th November 2020.

   On 29th March 2022 I was requested to provide further information relating to police clearance certificates from each country where I have lived for a total of 12 months or more in the last 10 years. I was required to submit the further information in support of my visa application within 28 days of the request.

   I submitted applications for police clearance certificates from both the United Kingdom and Australia. Unfortunately, I did not receive the UK Police Certificate within the designated timeframe.

   I made a phone call to the Australian Government Department of Home Affairs to express my concern regarding the status of my UK Police Certificate. I was advised to submit the receipt of my application in lieu of the UK Police Certificate. I was informed that the officer reviewing my visa application would then request the certificate when they came to review my visa application.

   On 27th April 2022 I submitted the following documents:

   • Australian Federal Police – National Police Certificate

   • ACRO Criminal Records Office – UK Police Certificate Request / Receipt

   On 3rd May 2022 I received my UK Police Certificate and as advised was waiting in good faith that I would be provided the opportunity to submit the certificate.

   On 24th October 2022 my visa was refused on the grounds that no UK Police Certificate was provided.

   I would like to appeal the refusal of my application for a Temporary Activity Visa based on the aforementioned facts and attach Police Certificates from both Australia and the United Kingdom as supporting evidence.

   …

7. 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 section 360(2)(a) of the Act.

   CONSIDERATION OF LAW, 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. As noted above, the delegate found that the applicant did not provide a UK police clearance despite being requested to do so. However, he has now done so. The Tribunal is satisfied that he has provided a United Kingdom police clearance issued on 3 May 2022 stating that there are no disclosable outcomes against his name. Moreover, he has now also provided an AFP police check dated 30 March 2022 stating the same, issued for immigration/visa purposes.

10. In light of the new evidence received, the Tribunal is satisfied that the applicant has now provided the requisite Police Clearance Certificates from the relevant authorities (the AFP for Australia and the ACRO Criminal Records Office for the UK) which provides evidence as to whether or not he has a criminal history. The applicant therefore meets the requirements of reg 2.03AA(2) for the purposes of PIC 4001 and cl.485.216(1).

11. 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.

    Conclusion

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

13. Accordingly, the Tribunal considers the appropriate course is to remit the matter for reconsideration of the remaining criteria for a subclass 408 visa.

    decision

14. The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 408 visa:

    ·regulation 2.03AA(2) in relation to Public Interest Criterion 4001 for the purposes of cl.408.216(1).

    Alison Mercer
    Member