Al Momani (Migration)

[2019] AATA 4612

Al Momani (Migration) [2019] AATA 4612 (9 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jawad Shawkat Musa Al Momani

CASE NUMBER:  1916556

DIBP REFERENCE(S):  BCC2019/1243110

MEMBER:R. Skaros

DATE:9 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·Regulation 2.03AA(2)(a). 

Statement made on 09 October 2019 at 2:40pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – statement from an appropriate authority – AFP Standard Disclosure certificate – AFP Complete Disclosure certificate – pending court appearance – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 485.216; 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 a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 12 March 2019. The criteria for a Skilled (Provisional) (Class VC) 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, cl.485.216 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 12 June 2019 on the basis that the applicant did not meet r.2.03AA because the applicant failed to provide an AFP Complete Disclosure certificate when requested by the delegate.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. The applicant gave the delegate a copy of an AFP Standard Disclosure certificate. On 11 May 2019 the delegate requested the applicant to provide an AFP Complete Disclosure certificate, however the applicant responded on 16 May 2019 by giving another copy of their Standard Disclosure certificate. On 9 August 2019, a copy of an AFP Complete Disclosure certificate dated 30 July 2019 was given to the Tribunal. This certificate records that there is a disclosable court outcome for the applicant, namely a pending court appearance on 7 August 2019.

9. The Tribunal finds that the applicant has provided a statement from an appropriate authority about whether or not he has a criminal record and therefore meets r.2.03AA(2)(a).

10. The Tribunal notes that the representative requested the Tribunal to await the outcome of the court appearance before making its decision. The Tribunal did not consider it necessary to delay the making of its decision as it is not assessing whether or not the applicant met the character test, but is determining whether the applicant provided the relevant statement from the appropriate authority regarding his criminal record. As this document has now been provided, the Tribunal is able to remit the matter to the Department for further consideration. Upon remittal of this matter to the Department, further assessment will be made regarding the remaining criteria for the grant of the visa.

11. As the applicant satisfies r. 2.03AA(2)(a), the appropriate course of action is to remit the matter to the Minister for further consideration.

    DECISION

12. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·Regulation 2.03AA(2)(a).

    R. Skaros
    Senior Member