Tan (Migration)

[2021] AATA 3493

Tan (Migration) [2021] AATA 3493 (9 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shuang Wen Tan

CASE NUMBER:  1901045

HOME AFFAIRS REFERENCE(S):          BCC2018/1006944

MEMBER:Alison Mercer

DATE: 9 September 2021

PLACE OF DECISION:  Melbourne

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) in relation to PIC 4001 for the purposes of cl 457.224(1) of the Regulations.

Statement made on 9 September 2021 at 4:13pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – character test – police clearances from home country and Australia provided to tribunal – form of document from home country – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), r 2.03AA(2), Schedule 2, cl 457.224(1), 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 Home Affairs on 4 January 2019 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 2 March 2018. At the time the application was lodged, Class UC contained subclass 457. The criteria for a subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl 457.224 was not met by the applicant. This clause required, amongst other things, the applicant had to meet the character test in Public Interest Criterion 4001 (PIC 4001) of Schedule 4 of the Regulations. The delegate noted that Departmental policy required that the applicant provided a police clearance from each country in which she had lived for 12 months or more in the last 10 years since turning 16. Moreover, r.2.03AA provided that the applicant had to provide completed police clearance(s) and/or a form 80 (if the latter had been requested), unless it was unreasonable for her to have to do so.

4. The delegate noted that Departmental policy required Malaysian citizens to provide a Malaysian Certificate of Good Conduct (CGC) but found that the applicant had not provided any evidence of having applied for a Malaysian CGC and it was not unreasonable for her to do so. The delegate therefore found that the exemption in r.2.03AA(3) did not apply, r.2.03AA(2)(a) was not met and thus the applicant did not satisfy PIC 4001. This meant that she did not meet cl.457.224 and could not be granted a subclass 457 visa.

5. The Tribunal received a review application from the applicant on 16 January 2019, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Hong Guo, as her representative and authorised recipient for correspondence.

6. On 5 April 2019, the Tribunal wrote to the applicant to request her to provide a Malaysian CGC.

7. On 23 April 2019, the applicant provided to the Tribunal a Malaysian police clearance issued on 11 April 2019 by the Malaysian Consulate in Australia.

8. On 9 May 2019, the Tribunal wrote again to the applicant to advise that this did not appear to be a Malaysian CGC and requesting that she provide a Malaysian CGC.

9. On 19 July 2019, the applicant provided another Malaysian police check issued on 28 June 2019. The applicant’s agent advised that although the check did not specifically state that it was a CGC, the email providing it from the Malaysian Consulate in Australia referred to it as a CGC, and thus it should be accepted as meeting the requirements.

10. On 11 May 2021, the Tribunal wrote again to the applicant to request that she provide a new Australian Federal Police (AFP) check and a new Malaysian CGC.

11. On the same date, the applicant’s agent responded asking for clarification of whether the AFP check needed was one that required the applicant’s fingerprints, and advising that the applicant was unable to apply for a new Malaysian CGC because it required her to have a valid Malaysian passport and hers had expired. Further, the agent stated that the applicant had been advised by the Malaysian Consulate in Australia to await the outcome of the Tribunal review as she needed to have a valid Australian visa in her new passport. The delegate also noted that it was impossible for the applicant to travel back to Malaysia to apply for a new passport. The applicant’s agent therefore requested for an extension of time to resolve this.

12. On 12 May 2021, the Tribunal agreed to defer further action, and the applicant undertook to provide a new AFP check as soon as possible.

13. On 3 September 2021, in response to a Tribunal request, the applicant emailed the Tribunal to clarify whether she could use the Malaysian CGC that she had previously provided on the basis that she had tried many times emailing and calling the Malaysian embassy but to no avail. She stated that her agent had advised her that as long as she hadn’t been back to Malaysia since her last CGC was issued, then she should be able to use it, given that she had been living in Australia for more than 10 years. She asked the Tribunal to advise. The applicant provided the following documents as attachments to her email:

    ·AFP clearance issued 17 August 2021, stating that there are no disclosable outcomes recorded for the applicant in all states and territories as of 24 May 2021; and

    ·Police clearance issued by the Consulate General of Malaysia in Melbourne on 28 June 2019 certifying that the Malaysian government has no adverse information recorded about the applicant.

14. On the same date, the Tribunal sent an email request to the applicant as follows:

    Please advise the Tribunal whether you have travelled overseas since 28 June 2019, when your Certificate of Good Character was issued. Please advise the Tribunal of the dates of these trips, where you travelled and the duration of your travel.

15. On 6 September 2021, the applicant responded by email to advise that:

    Yes, I have travelled in Europe as well as Japan after my Certificate of Good Conduct was issued on the 28th of June 2019. Please find details as follow.

    From 12th of December 2019 to 3rd of January 2020 I was in Europe. I was in Italy for that period except from 23rd to 26th of December 2019 in Santorini and from 30th of December to 1st of January 2020 in France. I then came back to Australia on the 3rd of January and went to Japan from 8th to 19th of January 2020.

    I have attached a copy of my flight tickets to Japan. Unfortunately I couldn’t find the flight tickets to Europe apart from a screenshot I got from email I’ve got of my flights. Please advise should you need more details.

16. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. Regulation 2.03AA of the Migration Regulations 1994 (Cth) (the Regulations) applies where a person is required to satisfy Public Interest Criteria (PIC) 4001 or 4002: r.2.03AA(1). In this case, cl.457.224 of Schedule 2 to the Regulations requires the applicant to meet PIC 4001. The applicant was therefore required to satisfy the criteria in r.2.03AA(2).

19. Regulation 2.03AA(2) 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. The Tribunal may waive the requirement in r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 2.03AA(3). Regulation 2.03AA(2)(b) requires that the applicant must provide a Form 80 if requested to do so. The Tribunal cannot waive the reg 2.03AA(2)(b) requirement. The Tribunal is satisfied that r.2.03AA(2)(b) does not apply in this case, as there is no evidence on the Department file that the applicant was requested to provide a Form 80.

20. Therefore, the issue in this case is whether the applicant has provided the requisite police clearances to satisfy the criteria in reg 2.03AA(2)(a) of the Regulations.

21. The Tribunal notes that the Department requested that the applicant provide police clearances from Australia and Malaysia, being the countries in which she had spent 90 days or more in the last 10 years.

22. As per paragraph 13 above, the Tribunal is satisfied that the applicant has provided the following:

    ·AFP clearance issued 17 August 2021, stating that there are no disclosable outcomes recorded for the applicant in all states and territories of Australia as of 24 May 2021; and

    ·Police clearance issued by the Consulate General of Malaysia in Melbourne on 28 June 2019 certifying that the Malaysian government has no adverse information recorded about the applicant.

23. The Tribunal accepts that the police clearance issued by the Consulate General of Malaysia in Melbourne on 28 June 2019 constitutes a CGC. Although the document itself does not state this in the title, the applicant has provided an email from the Consulate General of Malaysia in Melbourne acknowledging receipt of her request for a CGC, and she was provided with the above document in response to that request.

24. The applicant has advised that although she travelled overseas after 28 June 2019, she did not return to Malaysia and spent less than 90 days overall in Italy, France, Greece and Japan in December 2019 – January 2020. She has provided documentary evidence of this travel. The Tribunal therefore considers that the Malaysian CGC is effectively still current, as the applicant has not returned to Malaysia since it was issued.

25. In light of the new evidence received, the Tribunal is satisfied that the applicant has now provided the requisite Police Clearance Certificates from relevant authorities where the applicant has resided which provide evidence as to whether or not she has a criminal history. The applicant therefore meets the requirements of reg 2.03AA(2).

26. Accordingly, the Tribunal considers the appropriate course is to remit the matter for reconsideration of the remaining criteria for a subclass 457 visa.

    DECISION

27. 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) in relation to PIC 4001 for the purposes of cl 457.224(1) of the Regulations.

    Alison Mercer
    Member