Smith (Migration)

[2019] AATA 4939

Smith (Migration) [2019] AATA 4939 (13 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Phillip Anthony Smith
Mrs Anita Celespara Smith
Mr Phillip Anthony Junior Smith
Mr Jed Christopher Smith
Miss Shayla Atasha Smith

CASE NUMBER:  1905690

DIBP REFERENCE(S):  BCC2017/3767101

MEMBER:R. Skaros

DATE:13 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Business Skills - Business Talent (Permanent)  visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 132 visa:

·Regulation 2.03AA(2)(b).

Statement made on 13 November 2019 at 8:38am

CATCHWORDS
MIGRATION – Business Skills - Business Talent (Permanent) (Class EA) visa – Subclass 132 (Business Talent) – character test – statement from an appropriate authority – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 132.213; 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 to refuse to grant the applicants Business Skills - Business Talent (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 13 October 2017. The criteria for a Business Skills - Business Talent (Permanent) 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.132.213 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 7 March 2019 on the basis that the first named applicant (the applicant) did not meet r.2.03AA because the applicant failed to provide a completed form 80.

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, as requested by a delegate of the Minister, a completed form 80.

   Has the applicant provided a completed approved Form 80?

8. In July 2018, November 2018 and February 2019, the applicant was requested by the delegate to provide personal particulars for character assessment on form 80.  The applicant did not provide the requested information within the periods of time granted by the delegate. The delegate proceeded to refuse the application on the basis that the applicant did not provide the requested completed form 80.

9. On review, the applicant provided a copy of his completed form 80. On this basis, the Tribunal is satisfied that the applicant has provided a completed approved form 80 as requested. The applicant therefore meets r.2.03AA(2)(b) for the purposes of cl.132.213.

10. In relation to the second, third, fourth and fifth named applicants (the secondary applicants), the Tribunal notes that the Department refused their applications on the basis that they were not members of the family unit of a person that holds a relevant visa.  The Tribunal also notes that the delegate assessed the secondary applicants against the primary criteria for the Subclass 132 visa and found that none of them had satisfied the requirements in cl.132.221 as none of them had been invited, in writing, by the Minister to apply for the visa. The Tribunal does not consider it appropriate to assess the secondary applicants against the primary criteria as this was not the basis on which they had applied for their visas.

11. The Tribunal notes that the secondary applicants applied for their visas on the basis of being members of the family unit of the first named applicant. None of the secondary applicants have made any claims against the primary criteria.

12. Having found that the first named applicant now satisfies the criterion on which the Department refused his visa application, namely r.2.03AA(2)(b), the appropriate course of action is to remit the matter to the Department for reconsideration of the remaining criteria for the visas in respect of the first named applicant and the secondary applicants.

13. Upon assessment of the first named applicant’s eligibility for the Subclass 132 visa, the Department will reconsider the secondary applicants’ eligibility for the visas against the secondary criteria.  

    DECISION

14. The Tribunal remits the applications for Business Skills - Business Talent (Permanent)  visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 132 visa:

    ·Regulation 2.03AA(2)(b).

    R. Skaros
    Senior Member