SHAHER (Migration)

[2019] AATA 6095

SHAHER (Migration) [2019] AATA 6095 (9 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr HAITHAM SALEEM SHAHER SHAHER
Mrs ANGHAM BAHER KHALAF
Miss YONA SALEEM
Master YEHIA ZAKRI SALEEM

CASE NUMBER:  1811826

DIBP REFERENCE(S):  CLF2018/50714

MEMBER:R. Skaros

DATE:9 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 408 visa:

·Regulation 2.03AA(2)(a).

Statement made on 09 October 2019 at 3:35pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history statement – certificates provided on review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), 2.03AA(2)(a), Schedule 2, cl 408.216, 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 Minister for Immigration to refuse to grant the applicants Temporary Activity (Class GG) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 9 March 2017. The criteria for a Temporary Activity (Class GG) 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.408.216 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 24 April 2018 on the basis that the first named 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 11 May 2017, 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 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 certificate.

9. On review, the applicant provided a copy of his and the secondary applicant’s Swedish police clearance certificates, issued on 7 May 2018, by the Swedish Police, indicating that there are no criminal records associated with the applicants. Information before the Tribunal indicates that the applicants have resided in Australia since December 2016.

10. The first named applicant also provided to the Tribunal a copy of his and the secondary applicant’s AFP Complete Disclosure certificates issued on 29 July 2019 and 22 July 2019, respectively, showing no disclosable outcomes.

11. The Tribunal finds that the first named applicant has provided a statement from an appropriate authority 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 reconsider the second named applicant’s eligibility for the visa.

14. The Tribunal further notes that the second named applicant has also provided to the Tribunal a copy of an Australian and Swedish police clearance certificate indicating she does not have a criminal record. As the second named applicant’s application for the visa was not refused on the basis of her not providing police checks from the relevant authorities, the Tribunal did not consider it appropriate to make findings on this issue, which can be considered by the Department on remittal of this matter.

    DECISION

15. The Tribunal remits the applications for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 408 visa:

    ·Regulation 2.03AA(2)(a).

    R. Skaros
    Senior Member