YAP (Migration)

[2020] AATA 5711

YAP (Migration) [2020] AATA 5711 (9 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JAY VEE ALMOZA YAP

CASE NUMBER:  1818018

DIBP REFERENCE(S):  BCC2018/1248158 BCC2018/177853

MEMBER:R. Skaros

DATE:9 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Training (Class GF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 407 visa:

·Regulation 2.03AA(2)(a).

Statement made on 09 December 2020 at 10:10am

CATCHWORDS

MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – criminal history – police clearance certificate provided upon review – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 407.219; 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 Immigration to refuse to grant the applicant a Training (Class GF) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 March 2018. The criteria for a Training (Class GF) visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. 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, 407.219 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).

4. Regulation 2.03AA(2)(a) 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 requirement for the applicant to provide a completed Form 80.

5. The delegate refused to grant the visa on 7 June 2018 on the basis that the applicant did not meet r.2.03AA because he did not provide a police clearance certificate or other statement from an appropriate authority in the Philippines that provided evidence about whether or not he had a criminal history as requested by the Department.

6. The Tribunal did not consider a hearing to be necessary in this case as it was able to find in favour of the applicant on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant has provided a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

9. In this case, the Department requested the applicant to provide an Australian Federal Police (AFP) National Complete Disclosure Certificate and evidence from an appropriate authority in the Philippines that provided evidence about his criminal history, if any. The applicant provided an AFP National Complete Disclosure certificate dated 18 April 2018 which stated that he had no disclosable court outcomes. However, he did not provide the requested certificate from Philippines, and for this reason the delegate was not satisfied that the applicant met the requirements of r.2.03AA(2).

10. The applicant has provided the Tribunal an updated AFP National Complete Disclosure certificate dated 26 September 2020, which also stated that there were no disclosable court outcomes recorded against the applicant. The applicant has also provided a certificate from the Department of Justice National Bureau of Investigation from the Philippines valid until 16 November 2021 which states that there are no derogatory remarks recorded against the applicant.

11. On the basis of the evidence before it, the Tribunal is satisfied that the applicant has provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

    Conclusion

12. On the basis of the above findings, the applicant meets r.2.03AA(2)(a).

    DECISION

13. The Tribunal remits the application for a Training (Class GF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 407 visa:

    ·Regulation 2.03AA(2)(a).

    R. Skaros
    Senior Member