Au (Migration)

[2018] AATA 5353

Au (Migration) [2018] AATA 5353 (1 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Ka Ngou Au

CASE NUMBER:  1826074

DIBP REFERENCE(S):  BCC2017/1554897

MEMBER:Bridget Cullen

DATE:1 November 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Skilled Independent (subclass 189) Skilled Independent (Permanent) (class SI) visa:

·Regulation 2.03AA.

Statement made on 01 November 2018 at 3:47pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – statement about criminal history from an appropriate authority – AFP Complete Disclosure certificate provided to the Tribunal – completed approved Form 80 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 189.215

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 Independent (subclass 189) Skilled Independent (Permanent) (class SI) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 28 August 2018. The delegate refused to grant the visa on 28 August 2018.

2. The applicant applied for the visa on 25 July 2018. The criteria for a Skilled Independent (subclass 189) Skilled Independent (Permanent) (class SI) visa are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Regulation 2.03AA.

3. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion 4001 or 4002: r.2.03AA(1). In this case, 189.215(1) 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 28 August 2018 on the basis that the applicant did not meet r.2.03AA because he had not provided an Australian Federal Police (AFP) National Police Check.  

6. The Tribunal has perused both the files of the Department and the Tribunal. On consideration of the evidence before it, the Tribunal has determined that a hearing is not required and that a decision on the review can be made on the basis of the documentation received.

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.

9. The Tribunal notes that on several occasions in 2017 and 2018, Departmental staff sent email to the applicant, requesting he provide a statement from a relevant authority in a country where he resided or had resided that provided evidence about whether or not he had a criminal history. Although the applicant did provide a copy of his Portuguese passport, he and an AFP National Police Check application submission receipt, the applicant did not respond to the Department’s 11 April 2018 and 18 June 2018 requests to provide a copy of the actual AFP National Police Check. 

10. On 25 September 2018 the applicant provided the Tribunal with an Australian Complete Disclosure certificate by the Australian Federal Police, dated 12 September 2018, which shows that there are no disclosable court outcomes recorded against the applicant. Accordingly the Tribunal is satisfied that the applicant has provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

11. On 31 October 2018 the applicant provided the Tribunal with a completed approved Form 80.  Accordingly, the Tribunal is satisfied that the applicant meets r.2.03AA(2)(b).

12. As the applicant meets both r.2.03AA(2)(a) and r.2.03AA(2)(b), he meets r.2.03AA(2) as a whole. 

    CONCLUSION

13. On the basis of the above findings, the applicant meets r.2.03AA.

    DECISION

14. The Tribunal remits the application for a Skilled Independent (subclass 189) Skilled Independent (Permanent) (class SI) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 visa:

    ·Regulation 2.03AA.

    Bridget Cullen
    Member