North (Migration)

[2017] AATA 1574

North (Migration) [2017] AATA 1574 (23 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Carla E. North

CASE NUMBER:  1703099

DIBP REFERENCE(S):  CLF2017/21009

MEMBER:Wan Shum

DATE:23 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Work (Long Stay Activity) (Class GB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 401 Temporary Work (Long Stay Activity) visa:

·cl.401.215 of Schedule 2 to the Regulations

·r.2.03AA

Statement made on 23 August 2017 at 11:44am

CATCHWORDS

Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 – Religious Worker stream – Adequate means of financial support – Public Interest Criterion 4001 – Overseas police certificate – Further information provided – Hearing not required

LEGISLATION

Migration Act 1958, ss 65, 360(2)(a)

Migration Regulation 1994, r 2.03, r 2.03A, r 2.03AA, Schedule 2, cl 401.215, cl 401.216, 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 2 February 2017 to refuse to grant the visa applicant a Temporary Work (Long Stay Activity) (Class GB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 August 2016. At the time of application, Class GB contained one subclass: Subclass 401 (Temporary Work (Long Stay Activity)).

3. The criteria for a Subclass 401 visa are set out in Part 401 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of the four alternative visa streams: the Exchange stream, the Sport stream, the Religious Worker stream, or the Domestic Worker (Executive) stream. The Domestic Worker (Executive) stream is only available for visa applications made on or after 23 March 2013.

4. In the present case, the applicant is seeking the visa in the Religious Worker stream. This stream provides for the temporary entry of persons who will be full-time religious workers in Australia. The delegate refused to grant the visa finding that the applicant did not meet the requirements of cl.401.215 and cl.401.216 of Schedule 2 to the Regulations. The delegate did not have satisfactory evidence regarding the applicant’s funds and was not able to assess the applicant against PIC 4001 because the applicant had not provided an overseas police certificate as requested.

5. The applicant has sought review of that decision and provided a Complete Disclosure certificate issued by the Australian Federal Police as well as a criminal history report from the US Department of Justice, Federal Bureau of Investigation and a police certificate from the UK. The applicant also provided a letter from the Church of Scientology.

6. The applicant was represented in relation to the review by a registered migration agent. The Tribunal sought additional information from the applicant regarding countries of residence addresses and a criminal history check from the state that she resided in the United States of America.

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 s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant has adequate means of support and whether she meets r.2.03AA.

   Adequate means of support

9. Clause 401.215 requires that an applicant either has adequate means or has access to adequate means to support himself or herself during the period of intended stay in Australia.

10. According to the information provided on the Form 80 given to the Tribunal, the applicant has been a religious worker with the Church of Scientology since October 2005. She is single.

11. On the visa application form, it was indicated that the applicant’s proposed period of stay in Australia was from 3 September 2016 to 3 September 2018. The remainder of the proposed period of stay is approximately one year. The applicant has a bank account with the Bank of America, which appears to be a credit account. No other evidence of personal savings was provided. The Tribunal has had regard to the letter provided from the Church of Scientology who confirmed that the Church would meet all of the applicant’s living expenses by providing accommodation and board, housecleaning, healthcare / coverage and incidentals such as transportation. The Church was also providing the applicant with a stipend of $70 per week.

12. While the applicant has limited funds herself, the Tribunal accepts that she has access to adequate means to support herself for the remainder of the proposed stay having regard to the information from the Church. Therefore, cl.401.215 is satisfied.

    Other criteria

13. A criterion for the grant of a Subclass 401 visa is cl.401.216 which requires that the applicant meets Public Interest Criteria including PIC 4001. Where a person is required to satisfy PIC 4001 for the grant of a visa, there are additional criteria prescribed under r.2.03AA that must be met for the grant of visa. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s criminal history. The additional criterion in r.2.03AA applies to all current applications.  

14. Regulation 2.03AA(1) states that in addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or PIC 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

15. Regulation 2.03AA(2) provides that 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.

16. On the information before the Tribunal, the department requested that the applicant provide offshore police certificates for each country where she had lived for a total of 12 months or more in the last 10 years. The delegate was unable to assess the applicant against PIC 4001 because the requested documents had not been provided.

17. On review, the applicant has provided to the Tribunal a letter from the US Department of Justice, Federal Bureau of Investigation certifying that “a search of the fingerprints provided by this individual has revealed no prior arrest data at the FBI. This does not preclude further criminal history at the state or local level”. The date of issue was 3 February 2017. The Tribunal requested state level checks and was provided with the results of a criminal history check from Florida, being the state the applicant resided in while in the USA. This check indicates that No Florida criminal history was located based on the information provided.

18. The Tribunal was also provided with a certificate from the ACRO Criminal Records Office of the National Police Chiefs’ Council in relation to the applicant’s period of residence in the United Kingdom. The letter indicates that there is no trace of any convictions, cautions, final warnings or reprimands in respect of the applicant. The date of issue of this certificate was 22 April 2017. The Tribunal noted that there was no indication on the visa application form that the applicant had resided in the UK and requested further information. A form 80 was provided to the Tribunal indicating that the applicant had lived in Florida, USA from October 2005 to March 2014, West Sussex in England from March 2014 to June 2015; and Florida from June 2015 to March 2016, when she came to Australia. Based on this information, the applicant has now provided offshore police certificates from each country where she has lived for a total of 12 months of more in the last 10 years.

19. The applicant has also obtained a Complete Disclosure National Police Certificate from the Australian Federal Police dated 16 May 2017 indicating that she has no disclosable court outcomes recorded against her name. It states on the certificate that all recorded offences released.

20. As the applicant has now complied with the request to provide the requested statements regarding her criminal history, the Tribunal finds that the applicant satisfies the criterion in r.2.03AA(2)(a).

21. The delegate is now able to assess whether the applicant meets PIC 4001 and cl.401.216.

22. The Tribunal remits the matter to the Minister with a direction that the applicant satisfies cl.401.215 and r.2.03AA. The Minister is to undertake consideration of whether the applicant meets cl.401.216 and the remaining criteria for the grant of a Subclass 401 visa.   

    DECISION

23. The Tribunal remits the application for a Temporary Work (Long Stay Activity) (Class GB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 401 Temporary Work (Long Stay Activity) visa:

    ·cl.401.215 of Schedule 2 to the Regulations

    ·Regulation 2.03AA.

    Wan Shum
    Member