Salonga (Migration)

[2024] AATA 4025

Salonga (Migration) [2024] AATA 4025 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Edmundo Manuel Salonga
Ms Charina Calbay Salonga
Ms Denise Calbay Salonga

REPRESENTATIVE:  Mr Raju KC (MARN: 1799073)

CASE NUMBER:  2428661

HOME AFFAIRS REFERENCE(S):          BCC2024/1348178

MEMBER:P. Maishman

DATE:10 October 2024

PLACE OF DECISION:  Perth

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)

The applications for the second and third named parties are remitted for reconsideration taking into account this direction.

Statement made on 10 October 2024 at 3:37pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Provisional) (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – criminal history – Philippines police clearance certificate provided upon review – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.217; Schedule 4, Public Interest Criterion 4001; r 2.03AA

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 to refuse to grant the applicants GK – Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 27 February 2024. The criteria for a GK – Temporary Skill Shortage (Class GK) visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (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: reg 2.03AA(1). In this case, cl 482.217 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. The applicant is therefore required to satisfy the criterion in reg 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 reg 2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 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 30 July 2024 on the basis that the applicant did not meet reg 2.03AA because no Philippines police clearance certificate issued by the National Bureau of Investigation had been provided by the applicant.

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 19 March 2024 the Department request the applicant to provide a Philippines police clearance certificate issued by the National Bureau of Investigation.

9. On 9 September 2024 the Tribunal received a Philippines police clearance certificate issued by the National Bureau of Investigation for the first and second named applicants.

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

    Conclusion

11. On the basis of the above findings, the applicant meets reg 2.03AA(2).

12. The second and third named applicants made their visa applications on the basis of being a member of the family unit of a Subclass 482 visa holder. Their applications will be reconsidered by the delegate taking into account this direction.  

    DECISION

13. 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).

14. The applications for the second and third named parties are remitted for reconsideration taking into account this direction.

    P. Maishman
    Member