Wright (Migration)

[2021] AATA 4166

Wright (Migration) [2021] AATA 4166 (12 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Stephanie Louise Wright

CASE NUMBER:  2106572

HOME AFFAIRS REFERENCE(S):          BCC2020/680045

MEMBER:Wan Shum

DATE:12 October 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

·Regulation 2.03AA.

Statement made on 12 October 2021 at 10:09am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Provisional) (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – evidence about criminal history – Australian Federal Police Complete Disclosure National Police Certificate – UK police certificate – decision under review remitted 

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 482.217; Schedule 4, Public Interest Criterion 4001; r 2.03

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 11 May 2021 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 6 January 2021. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criterion in r.2.03AA because the applicant did not provide the information or the documents prescribed in r.2.03AA. Regulation 2.03AA applies in this case because the applicant is required to satisfy PIC 4001, which is one of the public interest criteria in cl 482.217(1).

4. The applicant sought review of that decision and provided a copy of a National Police Certificate issued by the Australian Federal Police and a Police Clearance certificate from the UK.

5. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets reg 2.03AA.

7. One of the criteria for the grant of a Subclass 482 visa is cl 482.217 which requires that the applicant meets Public Interest Criteria including PIC 4001. Where a person is required to satisfy PIC 4001 for the grant of a visa, there are additional criteria prescribed under reg 2.03AA that must be met for the grant of visa. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s criminal history. The additional criterion in reg 2.03AA applies to all current applications.  

8. Regulation 2.03AA(1) states that in addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or PIC 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

9. Regulation 2.03AA(2) provides that if the Minister has requested the following documents or information, the person has provided the documents or information:

   (a)  a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

   (b)  a completed approved form 80.

10. The Department wrote to the applicant on 9 March 2021 requesting a copy of the AFP clearance National Police Check and another copy of the UK police clearance certificate because “unable to clearly read the certificate that has been submitted”. But these certificates were not provided before the decision was made.

11. On 7 June 2021, an officer of the Tribunal wrote to the applicant to request a copy of her complete disclosure certificate from the Australian Federal Police (AFP).

12. In response, the applicant requested an extension of time to provide the UK police clearance certificate and her AFP certificate. On 14 July 2021, she provided a photograph of her AFP certificate dated 6 July 2021 which confirmed that she had no disclosable court outcomes recorded against her name. The applicant made a number of requests for further time to provide the UK police certificate, advising that there had been delays in processing times and an issue with the photograph submitted.

13. On 12 October 2021, the Tribunal received a photograph of a UK police certificate issued by the ACRO Criminal Records Office dated 8 October 2021 indicating that there are no trace of convictions, cautions, final warnings or reprimands recorded against the applicant.

14. As the applicant has now complied with the request to provide evidence of an AFP certificate and a UK police certificate, the Tribunal finds that the applicant satisfies the criterion in r.2.03AA(2)(a).

15. The delegate referred to the requirement that the applicant needed to satisfy cl 482.217 for the grant of the visa, which requires that the applicant satisfy various public interest criteria including 4001. The delegate had requested that the applicant provide an AFP clearance National Police Check but, as none was provided before the decision was made, found that the applicant did not meet r.2.03AA(2).

16. As the AFP certificate and a new UK police certificate have been provided on review, the delegate is now able to assess whether the applicant meets PIC 4001.

17. The Tribunal remits the matter with a direction that the applicant satisfies r.2.03AA. The Minister is now in a position to undertake consideration of whether the applicant meets cl 482.217 and the remaining criteria for the grant of a Subclass 485 visa.   

    DECISION

18. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

    ·Regulation 2.03AA.

    Wan Shum
    Member