Parenzee (Migration)

[2020] AATA 5925

Parenzee (Migration) [2020] AATA 5925 (17 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gavin Michael Parenzee
Mrs Jacintha Erica Parenzee

CASE NUMBER:  1925491

DIBP REFERENCE(S):  BCC2017/3154109

MEMBER:R. Skaros

DATE:17 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 visa:

·Regulation 2.03AA(2)(a).

Statement made on 17 November 2020 at 5:18pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 – AFP National Complete Disclosure Certificate provided – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA(2)(a)

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 applicants Skilled Independent (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 31 August 2017. The criteria for a Skilled Independent (Permanent) 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, 189.211 of Schedule 2 of the Regulations requires the first named applicant (the applicant) to meet PIC4001. 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 visas on 27 August 2019 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide the requested Australia Federal Police (AFP) National Complete Disclosure Certificate.

6. The Tribunal did not consider a hearing to be necessary in this case as it was able to make a favourable finding 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. In this case, the Department requested that the applicant provide an AFP Complete Disclosure Certificate. In response, the applicant provided a Nationally Coordinated Criminal History Check Certificate (NCC National Crime Check). This document did not meet the Department’s evidentiary requirements and the delegate found that the applicant did not meet r.2.03AA(2).

10. The applicant has now provided the Tribunal with AFP National Complete Disclosure Certificate in his name dated 26 October 2020, which states that there are no disclosable court outcomes against the applicant. The Tribunal also has before it an AFP National Complete Disclosure Certificate for the second named applicant dated 24 October 2020 which also states that there are no disclosable court outcomes against her.

11. The applicant has provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

12. On the basis of the above findings, the first named applicant meets r.2.03AA(2)(a) and the appropriate decision is to remit the applications for both the first and second named applicants to the Department for reconsideration of the remaining criteria.

    DECISION

13. The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 visa:

    ·Regulation 2.03AA(2)(a).

    R. Skaros
    

    Senior Member