Tropeano (Migration)

[2017] AATA 1583

Tropeano (Migration) [2017] AATA 1583 (31 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gianni Tropeano

CASE NUMBER:  1702989

DIBP REFERENCE(S):  CLF2017/22582

MEMBER:Katie Malyon

DATE:31 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 401 visa:

·Public Interest Criterion 4001 for the purposes of cl.401.216 of Schedule 2 to the Regulations.

Statement made on 31 August 2017 at 12:39 pm

CATCHWORDS

Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 –– Character test – Public Interest Criterion 4001 – Overseas and domestic police certificates provided

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 401.216, 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 applicant, Mr Gianni Tropeano, a Temporary Work (Long Stay Activity) (Class GB) Subclass 401 visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Tropeano applied for the visa on 26 October 2016.  The delegate refused to grant the visa on 2 February 2017 because insufficient evidence of Mr Tropeano’s criminal history was provided to enable the delegate to assess if he satisfied a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).  The delegate refused to grant the visa because Mr Tropeano could not be assessed against Public Interest Criterion (PIC) 4001 and, therefore, cl.401.216 of Schedule 2 to the Regulations could not be considered as being met.

3. Mr Tropeano was represented in relation to the review by a registered migration agent.  The Tribunal notes that he did not have the benefit of his new representative’s assistance when lodging his Subclass 401 visa application with the Department.

4. The Tribunal did not hold a hearing in this matter because it determined it was able to make a favourable decision on the papers.  For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether Mr Tropeano meets PIC 4001 as required by 401.216 of Schedule 2 of the Regulations.

6. Essentially, PIC 4001 provides that the applicant must satisfy the Minister that he/she has passed the character test or the Minister is satisfied that, after making appropriate enquiries, there is nothing to indicate the person would fail to pass the character test. 

   Has evidence been provided to satisfy the character test?

7. Clause 401.216 of Schedule 2 of the Regulations requires that the visa applicant must, amongst other criterion, satisfy PIC 4001.

8. When he lodged his Subclass 401 visa application with the assistance of his employer’s representative, Mr Tropeano did not provide the Department with evidence of meeting PIC 4001 and nor did he complete that part of his Form 1404 Application for a Temporary Work (Long Stay Activity) visa relating to character details.  As noted in the delegate’s decision, copy of which was provided to the Tribunal, the delegate contacted Mr Tropeano through his employer’s representative requesting documentation to enable an assessment of whether he met PIC 4001 having regard to the fact that his proposed period of stay in Australia is 2 years.  No response was received.    

9. On 8 June 2017, Mr Tropeano’s new representative provided the Tribunal with the following documentation:

   ·Penal Certificate of Criminal Records issued by the Italian Ministry of Justice dated 2 February 2017 confirming that Mr Tropeano has no convictions; and,

   ·FBI Police Clearance issued by the US Department of Justice dated 16 February 2017 confirming Mr Tropeano has no prior arrests data.  The FBI Certificate also state that it ‘DOES NOT PRECLUDE FURTHER CRIMINAL HISTORY AT THE STATE OR LOCAL LEVEL‘. 

10. Subsequently, and in response to a request from the Tribunal, Mr Tropeano’s new representative provided the Tribunal with the following:

    ·Australian Federal Police certificate dated 8 August 2017 confirming no disclosable Court outcomes in the records of the Australian Federal Police and the police in all Australian States and Territories;

    ·Criminal History Information from the Florida Department of Law Enforcement dated 25 August 2017 confirming no relevant criminal records; and,

    ·completed Form 1404 Application for a Temporary Work (Long Stay Activity) visa. 

11. Having regard to the evidence provided, the Tribunal finds that Mr Tropeano satisfies PIC 4001 for the purposes of cl.401.216 of Schedule 2 to the Regulations.

12. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

13. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 401 visa:

    ·Public Interest Criterion 4001 for the purposes of cl.401.216 of Schedule 2 to the Regulations.

    Katie Malyon

    
    Member