Tan (Migration)

[2019] AATA 1247

Tan (Migration) [2019] AATA 1247 (17 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sue Chen Tan

CASE NUMBER:  1814802

DIBP REFERENCE(S):  BCC2017/2887241

MEMBER:Michelle East

DATE:17 January 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·Regulation 2.03AA(2) of the Regulations

Statement made on 17 January 2019 at 11:31am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Australian Federal Police Complete Disclosure provided – Malaysian Government Penal Clearance provided – no criminal record – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360

Migration Regulations 1994 (Cth), r 2.03AA(2), Schedule 2, cl 457.224, Public Interest Criterion 4001, 4002

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 11 August 2017. The delegate refused to grant the visa on 2 May 2018.

2. The delegate made the decision on the basis that evidence of criminal history was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. A copy of the delegate’s decision was attached to the application for review.

4. 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.457.224 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).

5. 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. 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 r.2.03AA(2)(b) requirement.

6. The delegate refused to grant the visa on 2 May 2018 on the basis that the applicant did not meet r.2.03AA because the applicant failed to provide evidence about whether or not she had a criminal history in all countries of residence (PIC 4001).

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.  In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant has provided evidence about whether she has a criminal history in all countries of residence.

9. The applicant with her visa application provided an Australian Federal Police (AFP) clearance and an acknowledgement notification for the application of Malaysian police clearance.  The delegate’s decision reflects that the AFP clearance provided was a Standard Disclosure and the Department required a Complete Disclosure.  On 8 November 2017, the applicant was requested to provide the correct AFP police clearance and the police clearance from Malaysia.  The delegate’s decision reflected that no response was received.

10. Subsequent correspondence received by the Tribunal indicates the letter sent from the Department was to an incorrect email address and was not received by the applicant’s representative. 

11. The applicant has provided to the Tribunal an AFP Complete Disclosure issued to her on 18 October 2018 and a Penal Clearance from the Malaysian government issued to her on 30 October 2018.  Both documents indicate the applicant has no criminal record in Australia and Malaysia.

12. Accordingly, the Tribunal is satisfied that the applicant has now provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

13. On the basis of the above findings, the applicant meets r.2.03AA(2). The appropriate course of action is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

14. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·Regulation 2.03AA(2)

    Michelle East
    Member