RAMOS (Migration)

[2020] AATA 2567

RAMOS (Migration) [2020] AATA 2567 (14 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rudy Dela Cruz RAMOS
Mrs Felicidad Bantilin RAMOS

CASE NUMBER:  1931232

DIBP REFERENCE(S):  BCC2019/1682855

MEMBER:R. Skaros

DATE:14 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for GK – Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

·Regulation 2.03AA(2)(a).

Statement made on 14 April 2020 at 10:25am

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Qatar police clearance certificate provided – Complete Disclosure National Police Certificate provided – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA; Schedule 2, cl 482.217

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 GK – Temporary Skill Shortage (Class GK) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 4 April 2019. The criteria for a GK – Temporary Skill Shortage (Class GK) 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, cl.482.217 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. 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 14 October 2019 on the basis that the applicant did not meet r.2.03AA because the first named applicant did not provide police clearance certificates from the relevant authorities in each country that he lived in for a total period of 12 months.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. On 10 April and 10 May 2019, the applicants were requested by the Department to provide police certificates from each country where the applicants lived for a total of 12 months or more in the last 10 years.  The applicants had not provided all the requested information within the period allowed by the delegate. The delegate proceeded to refuse the application on the basis that the first named applicant did not provide the requested police clearance certificates.

9. On review, the first named applicant provided a copy of his Qatar police clearance certificate, issued on 13 November 2019, by the Ministry of Interior, State of Qatar, indicating that there are no criminal records associated with the applicant.

10. The first named applicant also provided to the Tribunal a copy of his AFP Complete Disclosure certificate issued on 23 March 2020, showing no disclosable outcomes.

11. The Tribunal finds that the first named applicant has provided statements from appropriate authorities 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).

13. In relation to the second named applicant, the Tribunal notes that the Department refused her application on the basis that she was not a member of the family unit of a person that holds a relevant visa.  The Tribunal notes that on remittal of this matter, and based on the outcome of the first named applicant’s application for the visa, the Department will consider the second named applicant’s eligibility for the visa.

    DECISION

14. The Tribunal remits the applications for GK – Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

    ·Regulation 2.03AA(2)(a).

    R. Skaros
    

    Senior Member