Shahrizan (Migration)

[2018] AATA 363

Shahrizan (Migration) [2018] AATA 363 (5 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Shahrul Afiq Bin Shahrizan

CASE NUMBER:  1727635

DIBP REFERENCE(S):  BCC2017/1253087

MEMBER:Denise Connolly

DATE:5 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Training (Class GF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 407 (Training) visa:

·Regulation 2.03AA(2).

Statement made on 05 February 2018 at 3:19pm

CATCHWORDS
Migration – Training (Class GF) visa – Subclass 407 (Training) – Requirement to provide police clearance from country of residence – Clearance not provided at time of application – Clearance subsequently provided to Tribunal

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA(2), Schedule 2, cl 407.219A, 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 Immigration on 19 October 2017 to refuse to grant the visa applicant a Training (Class GF) Subclass 407 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 3 April 2017. At the time of application, Class GF contained one subclass: Subclass 407 (Training).

3. The criteria for a Subclass 407 visa are set out in Part 407 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by the applicant.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.407.219A because he did not provide evidence of his police clearance in his country of residence, Malaysia, for the purposes of assessing whether he meets the character requirements.

5. The applicant was represented in relation to the review by his registered migration agent.

6. The applicant had provided to the Department a Complete Disclosure from the Australian Federal Police. He has now provided to the Tribunal a Certificate of Good Conduct from the Malaysian Ministry of Foreign Affairs.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Clause 407.219A requires, among other things, that the applicant meets Public Interest Criteria including PIC 4001. Where a person is required to satisfy PIC 4001 for the grant of a visa, there are additional criteria prescribed under r.2.03AA that must be met for the grant of visa. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s character and criminal history.

9. Regulation 2.03AA(1) states that, in addition to the criteria prescribed by Regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or PIC 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

10. Regulation 2.03AA(2) provides that, if the Minister has requested the following documents or information, the person has provided the documents or information:

    (a)  a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

    (b)  a completed approved form 80.

    Does the applicant meet regulation 2.03AA(2)?

11. The primary decision record indicates that on 26 June 2017 the applicant was requested by the delegate to provide a police clearance from Malaysia but failed to do so. The Department’s records indicate he was also asked to provide a police clearance from the Australian Federal Police.

12. After making the review application the applicant provided to the Tribunal a copy of a certificate of good conduct dated 18 July 2017 from the Ministry of Foreign Affairs, Malaysia. It records that the applicant has no adverse record in Malaysia.  The Tribunal notes that the Australian High Commission in Malaysia records that this is the manner in which a police clearance is to be provided (>

    The Tribunal notes the applicant has already provided the clearance from the Australian Federal Police, a Complete Disclosure certificate dated 19 July 2017 certifying there are no disclosable court outcomes recorded against the applicant.

13. As the applicant has now complied with the request to provide police clearances from the AFP and the Malaysian authorities the Tribunal is satisfied that the applicant meets r.2.03AA(2).

14. As the applicant has provided the police certificates the delegate is now able to assess whether the applicant meets PIC 4001 for the purposes of cl.407.219A.

15. The Tribunal considers the appropriate course of action is to remit the application for the Minister to consider whether the applicant meets PIC 4001 for the purposes of cl.407.219A and the remaining criteria for the grant of a Subclass 407 visa.

    DECISION

16. The Tribunal remits the application for a Training (Class GF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 407 (Training) visa:

    ·Regulation 2.03AA(2).

    Denise Connolly
    Member