Voronova (Migration)

[2017] AATA 2260

Voronova (Migration) [2017] AATA 2260 (30 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Natalja Voronova

CASE NUMBER:  1702990

DIBP REFERENCE(S):  CLF2017/25527

MEMBER:Kate Timbs

DATE:30 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Work (Long Stay Activity) (Class GB) visa for reconsideration with the direction that the applicant meets Public Interest Criterion 4001 in Schedule 4 the Migration Regulations for the purpose of clause 401.216 of Schedule 2 of those Regulations.

Statement made on 30 October 2017 at 11:10am

CATCHWORDS

Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 – Religious Worker stream– Character test (PIC 4001) met

LEGISLATION

Migration Act 1958, ss 65

Migration Regulation 1994, Schedule 2, Part 401, Schedule 4, cl 401.216

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 Ms Voronova a Temporary Work (Long Stay Activity) (Class GB) visa under section 65 of the Migration Act 1958 (the Act).

2. Ms Voronova applied for the visa on 26 October 2016 in the Religious Worker stream. On 2 February 2017, the delegate refused to grant the visa. On 21 February 2017, Ms Voronova applied for review of that decision.

3. The Tribunal made this decision without hearing at the request of Ms Voronova’s representative, Mr Ben Vevers, Registered Migration Agent.

   Relevant law

4. The relevant law is the Act and the Migration Regulations 1994 (the Regulations). To be granted the visa, Ms Voronova must meet the criteria in Part 401 of Schedule 2.

5. To satisfy clause 401.216, Ms Voronova must satisfy specified criteria in Schedule 4 to the Regulations, including Public Interest Criteria 4001 (PIC 4001). The delegate found that was not the case and refused to grant the visa for that reason.

6. Ms Voronova satisfies PIC 4001 “if the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that [she] would fail to satisfy the Minister that [she] passes the character test”. To deal with her application for review, the Tribunal considered whether that was the case at the time of this decision. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The delegate asked Ms Voronova for overseas penal certificates for each country in which she has lived for 12 months or more during the last 10 years and a completed Part K of Form 1401. She did not provide those documents by the time of the delegate’s decision and the delegate was not satisfied there was nothing to indicate Ms Voronova would fail to pass the character test.

8. Ms Voronova has now provided a statutory declaration that she has lived for more than 12 months in the last ten years in the United States (in Florida), Latvia and Russia. She has provided the Tribunal with the following documents:

   ·A recent national police certificate from the Australian Federal Police

   ·Completed Part K of Form 1401

   ·Advice from an officer of Criminal History Services, Florida Department of Law Enforcement

   ·The result of fingerprint searches conducted by the US Federal Bureau of Investigation

   ·A Police Clearance Certificate from the Consulate General of the Russian Federation in Sydney

   ·A certificate from the Punishment Register of the Information Centre of the Ministry of the Interior of the Republic of Latvia

9. All documents state Ms Voronova has no criminal convictions recorded and the Tribunal is satisfied appropriate inquiries have been made after receiving those documents. It is satisfied that there is nothing in those documents or other information available to the Tribunal to indicate Ms Voronova would fail to satisfy the Minister that she passes the character test. In that case, she satisfies PIC 4001 for the purposes of clause 420.216.

10. The Tribunal will set aside the decision under review for that reason and send the matter back to the Department with a direction to that effect. The Department will then consider whether Ms Voronova meets other relevant criteria for the grant of the visa.

    DECISION

    The Tribunal remits the application for a Temporary Work (Long Stay Activity) (Class GB) visa for reconsideration with the direction that the applicant meets Public Interest Criterion 4001 in Schedule 4 of the Migration Regulations for the purpose of clause 401.216 of Schedule 2 of those Regulations.

    Kate Timbs
    Member