Phlablabpho (Migration)

[2018] AATA 3123

Phlablabpho (Migration) [2018] AATA 3123 (13 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Phra Suchat Phlablabpho

CASE NUMBER:  1719809

DIBP REFERENCE(S):  BCC2016/4082210 CLF2017/63414

MEMBER:Susan Trotter

DATE:13 July 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets:

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

Statement made on 13 July 2018 at 5:04pm

CATCHWORDS
Migration – Temporary Activity (Class GC) – Subclass 408 (Temporary Activity) – Religious worker stream – Buddhism religious activities – Character test – Criminal check documents provided – Decision made on review – Decision remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 2.03AA Schedule 2 cl 485.216 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 then Minister for Immigration and Border Protection[1] (the Minister) to refuse to grant the applicant a Temporary Activity (Class GG) Subclass 408 visa under s.65 of the Migration Act 1958 (the Act).

   [1] Now the Minister for Home Affairs

2. The applicant is a 39 year old citizen of Thailand. He applied for the temporary visa the subject of this review on 3 December 2016 stating that he sought to undertake Buddhism religious activities including conducting prayer ceremonies, teaching and intercommunicating with other Buddhist organisations whilst in Australia.

3. The delegate refused to grant the visa on 28 August 2017 on the basis that no evidence of a Thailand penal clearance certificate had been provided by the applicant as requested and required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 29 August 2017.

5. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicant's favour on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal.

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

   ISSUES

7. The criteria for the grant of a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Regulations.

8. Clause 485.216 of Schedule 2 of the Regulations requires the applicant to meet Public Interest Criterion 4001 (PIC 4001).

   Regulation 2.03AA relevantly provides as follows in relation to PIC 4001.

   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 subregulation (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.

9. The applicant is therefore required to satisfy the criterion in r.2.03AA(2). 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. 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).

10. It follows that the issue to be determined by the Tribunal 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.

    CONSIDERATION

    Has the applicant provided a statement from an appropriate authority?

11. On 10 July 2017, the applicant was requested to provide evidence of their Thailand penal clearance to the Department of Immigration and Border Protection[2] (the Department) within 14 days. The applicant did not provide the requested information.

    [2] Now the Department of Home Affairs

12. The Tribunal is satisfied that the Department requested the applicant to provide a statement by an appropriate authority in Thailand about whether or not the applicant has a criminal history. The applicant therefore has to provide the requested statement to meet r.2.03AA of the Regulations.

13. On 28 June 2018, the Tribunal received a translation of a letter from the Royal Thai Police dated 29 January 2018 stating, amongst other things, that the applicant had never committed any act undermining national security. The letter noted one previous conviction, for possession of a category 1 narcotic, but also stated that the offence was absolved and the applicant is deemed to have never been punished for such a criminal offence. There is no material before the Tribunal to indicate that this document is not genuine.

14. As the applicant has now provided the requested statement from the appropriate authority he meets r.2.03AA(2)(a).

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

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

17. Accordingly, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 408 visa.

    DECISION

18. The Tribunal remits the application for reconsideration, with the direction that the applicant meets:

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

    Susan Trotter
    Member