Pniel (Migration)

[2022] AATA 3471

Pniel (Migration) [2022] AATA 3471 (15 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Putu Yesy Dinda Pniel

CASE NUMBER:  1905309

HOME AFFAIRS REFERENCE(S):          BCC2018/807462

MEMBER:Amanda Mendes Da Costa

DATE:15 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·cl 457.224(1) of Schedule 2 to the Regulations.

Statement made on 15 August 2022 at 11.37am

CATCHWORDS  
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – character test – statement from an appropriate authority – National Police Certificate issued by the Australian Federal Police – Police Record issued by the police in Denpasar, Bali, Indonesia – certified translator – decision under review remitted

LEGISLATION 
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 457.224; 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 Home Affairs on 19 February 2019 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 19 February 2018. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate refused to grant the visa on the basis that cl 457.224(1) was not met in relation to Public Interest Criterion (PIC) 4001(a) because she had not demonstrated that she satisfied the requirements of subregulation 2.03AA(2).

4. Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 25 July 2022 to give evidence and present arguments.

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

   consideration of claims and evidence

6. The issue in this case is whether the applicant meets the requirements of cl 457.224(1).

7. Clause 457.224(1) requires that inter alia the applicant satisfies PIC 4001.  As the applicant is required to satisfy PIC 4001 for the grant of the visa, subregulation 2.03AA(1) requires that the criterion in subregulation 2.03AA(2) be met unless subregulation 2.03AA(3) applies.

8. The Tribunal notes that on 15 November 2018 the Department requested the applicant provide police certificate(s) from each country where she had lived for a total of 12 months or more in the last 10 years as evidence, she satisfied the character requirements.

9. The Department subsequently gave the applicant until 12 January 2019 to provide the requested documents with no response.

10. Prior to the hearing the applicant provided the Tribunal with a National Police Certificate issued by the Australian Federal Police on 22 April 2022.  This certificate shows that there are no disclosable court outcomes in all Australian states and Territories for the applicant.

11. The applicant also provided a Police Record issued by the police in Denpasar, Bali, Indonesia on 18 July 2022.  This Record is partially in the English language but predominantly in the Indonesian language.

12. During the hearing, the Tribunal discussed with the applicant the fact that the Police Record issued by the police in Indonesia had not been translated and requested that the applicant provide a translation by an appropriately qualified translator.  The applicant indicated that she would do so after the hearing.

13. Following the hearing the applicant provided a translation (dated 3 August 2022) of the Police Record by a certified translator.  This shows that the applicant was not involved in any criminal cases during her stay in Indonesia from 6 January 1996 until 18 July 2022.

14. Based on the National Police Certificate and Indonesian Police Record, the Tribunal is satisfied that the applicant has provided police certificates from each country where she has lived for a total of 12 months or more in the last 10 years and that there are no disclosable court outcomes in either Australia or Indonesia regarding the applicant.

15. Accordingly, the applicant satisfies the requirements of subregulation 2.03AA(2) and PIC 4001(a) and therefore cl 457.224(1) is met.

16. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    decision

17. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·cl 457.224(1) of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member