Randunu Mudiyanselage (Migration)

[2019] AATA 175

Randunu Mudiyanselage (Migration) [2019] AATA 175 (18 January 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajitha Lakmal Priyadarshana Rathnayaka Randunu Mudiyanselage

CASE NUMBER:  1820000

DIBP REFERENCE(S):  BCC2018/980676

MEMBER:Alison Mercer

DATE OF DECISION:  18 January 2019

DATE CORRIGENDUM

SIGNED:11 February 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1.On the front page under the heading ‘DECISION’, amend the sentence ‘The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 485 visa…’ to ‘The Tribunal remits the application for a Class UC visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 457 visa…;’ and

2.On page 3, amend paragraph 13 from ‘The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 485 visa…’ to ‘The Tribunal remits the application for a Class UC visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 457 visa…’

Alison Mercer
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajitha Lakmal Priyadarshana Rathnayaka Randunu Mudiyanselage

CASE NUMBER:  1820000

DIBP REFERENCE(S):  BCC2018/980676

MEMBER:Alison Mercer

DATE:18 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 485 visa:

·regulation 2.03AA(2) of the Regulations.

Statement made on 18 January 2019 at 4:12pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work Skilled) – police clearance – AFP Full Disclosure check – Sri Lankan police clearance certificate – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360

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 27 June 2018 to refuse to grant the applicant a Class UC subclass 457 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 1 March 2018. The criteria for the grant of a subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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.457.224 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).

3. 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.

4. The delegate refused to grant the visa on 27 June 2018 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide a police clearance certificate provided by an appropriate authority in a country where the applicant had lived for a total of 12 months or more in the last 10 years, despite being requested to do so by the delegate. The delegate found that the applicant therefore did not meet r.2.03AA(2)(a), and did not consider it unreasonable for him to do so, so did not waive the requirement to meet r.2.03AA(2)(a) pursuant to r.2.03AA(3). The delegate found that the applicant therefore did not meet PIC 4001 for the purposes of cl.457.224.

5. The Tribunal received a review application from the applicant on 10 July 2018.  It was accompanied by a copy of the delegate’s decision. On 26 November 2018, the applicant provided to the Tribunal a complete disclosure certificate issued to him by the AFP on 16 November 2018, and a Sri Lankan police clearance certificate issued to him on 20 November 2018, both indicating that there are no disclosable outcomes recorded against his name. 

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. 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 section 360(2)(a) of the Act.

   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. The Departmental decision indicates that the applicant did not respond to a request from the Department to provide the appropriate police clearance checks. No checks had been provided at the time that the delegate made the decision to refuse to grant the applicant a visa.

9. However, the applicant has now provided to the Tribunal an AFP Full Disclosure check issued on 16 November 2018 and a Sri Lankan police clearance certificate issued to him on 20 November 2018 indicating he has no criminal record in Australia or Sri Lanka. The Tribunal has reviewed the Department’s file and is satisfied that there is no indication that the applicant has lived in any other countries for 12 months or more in the last 12 months.

10. Accordingly, the Tribunal is satisfied that the applicant has now provided statements from appropriate authorities and therefore meets r.2.03AA(2)(a).

11. 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.

12. On the basis of the above findings, the Tribunal is satisfied that the applicant meets r.2.03AA(2).

    DECISION

13. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 485 visa:

    ·regulation 2.03AA(2)(a).

    Alison Mercer
    Member

    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    (a)each of the following applies:

    (i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

    (ba)either:

    (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

    (ii)     each of the following applies:

    (A)the applicant is employed to work in the nominated occupation;

    (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

    (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

    (ii)     the position associated with the nominated occupation is genuine; and

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant;

    the applicant:

    (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

    (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

    (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

    (f)either:

    (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

    (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

    …

    (6)This subclause applies to an applicant if:

    (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

    (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

    …

    (11)In subclause (4):

    exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.