Spencer (Migration)

[2019] AATA 1034

Spencer (Migration) [2019] AATA 1034 (11 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Samuel David Spencer

CASE NUMBER:  1901391

DIBP REFERENCE(S):  BCC2017/4475851

MEMBER:Jennifer Cripps Watts

DATE:11 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·Regulation 2.03AA(2)(a)

Statement made on 11 February 2019 at 9:22am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – an updated AFP check provided – Decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03, Schedule 2, cl 485.224

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 (the delegate) to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 27 November 2017. The criteria for a Temporary Business Entry (Class UC) 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.485.224 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).

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 visa on 31 December 2018 on the basis that the applicant did not meet r.2.03AA(2) because the applicant did not provide a police clearance certificate, that is, a statement from an appropriate authority, described as an Australian Federal Police Complete Disclosure statement (AFP Check), when it was requested.

6. The applicant made a review application to the Tribunal on 21 January 2019 and provided the Tribunal with a copy of the delegate’s decision to refuse the visa. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.  Relevantly, this is an AFP Check.  The Tribunal has had regard to information provided by the applicant and in the delegate’s decision.

   Has the applicant provided a statement from an appropriate authority?

9. In January 2018, the applicant provided a United Kingdom police certificate issued on 25 October 2017 outlining certain offences and the convictions related to them.  He provided an AFP Check issued on 3 January 2018 outlining certain offences, including one where there was a pending court result.

10. On 4 October 2018, the delegate requested that the applicant provide an updated AFP Check, on the basis that the pending court result appeared by then to have been finalised.  The applicant responded to the request and informed the delegate, on 5 November 2018, that on that day he had been in court in relation to the pending charges and that they had been resolved with no conviction/s.  In the 5 November 2018 response, he said he was intending to apply for an updated AFP Check as soon as possible.  By 23 November 2018, the applicant had not provided an updated AFP Check as he indicated he would.  Justifiably, in the Tribunal’s view, the applicant’s visa was refused because he did not satisfy r.2.03AA(2)(a).

11. The applicant has provided the Tribunal with a copy, by email, of an AFP Check issued on 15 January 2019.

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

13. The Tribunal was able to make a positive decision on the papers.  There was no hearing necessary.

    Conclusion

14. On the basis of the above findings, the applicant meets r.2.03AA(2)(a).

    DECISION

15. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·Regulation 2.03AA(2)(a)

    Jennifer Cripps Watts
    Member