Barboza (Migration)

[2022] AATA 1230

Barboza (Migration) [2022] AATA 1230 (16 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Roydan Abraham Barboza

CASE NUMBER:  2118226

HOME AFFAIRS REFERENCE(S):          BCC2021/387093

MEMBER:Amanda Mendes Da Costa

DATE:16 February 2022

PLACE OF DECISION:  Melbourne

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:

·cl 485.216(1) of Schedule 2 to the Regulations.

Statement made on 16 February 2022 at 1.25pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa– copy of a National Police Certificate provided– no disclosable outcomes recorded against the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 2.03AA, Schedule 2, cl 485.216

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 Home Affairs on 30 November 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 13 March 2021. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.216(1) of Schedule 2 to the Regulations because the applicant had not provided a police check, as required.

4. On the basis of the material in both the Department’s and Tribunal’s files, and in accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour.  It was therefore unnecessary for the applicant to appear before it at a hearing to give oral evidence in relation to the decision under review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements of cl.485.216(1) of Schedule 2 to the Regulations.

   Evidence relating to police checks

7. Clause 485.216(1) requires that the applicant satisfies Public Interest Criteria (PIC) 4001 at the time of decision.  The delegate found that as the applicant is required to satisfy PIC 4001 for the grant of the visa, Regulation 2.03AA(1) applies.  This Regulation provides that in addition to the criteria prescribed by Regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or 4002 for the grant of the visa, the criterion in subregulation (2) is prescribed.

8. This subregulation states 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.

   Note:        For paragraph (a) an example of an appropriate authority is a police force.

9. The delegate noted that the applicant had answered ‘Yes’ to the question:

   Have you and all persons included in this application who are 16 years of age or over, applied in the last 12 months to the AFP for a check of criminal records.

10. Although the applicant provided a receipt in support of his application for an AFP police certificate, he had not provided an AFP ‘Complete Disclosure’ certificate required by the Department.  The delegate found that the applicant had not provided a police clearance certificate or other statement (however described) provided by an appropriate authority in Australia being a country where the applicant resides, that provides evidence about whether or not the applicant has a criminal history and therefore had not satisfied the criterion in Regulation 2.03AA(2)(a).

11. The applicant has provided the Tribunal with an AFP ‘National Police Certificate, Immigration/Citizenship-Australia Name Check Only’ dated 1 November 2021 which shows that there are no disclosable court outcomes against the applicant.

12. The Tribunal does not consider that in order to satisfy the provisions of Regulation 2.03(2)(AA) the applicant is required to provide an AFP ‘Complete Disclosure’ certificate as determined by the delegate.  The Tribunal finds that the AFP certificate provided to it by the applicant is a statement provided by an appropriate authority (being a police force) in a country where the applicant resides that provides evidence about whether or not he has a criminal history.

13. Therefore the applicant satisfies cl.485.216(1).

14. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

15. 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:

    ·cl 485.216(1) of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa

    
    

    Member

    Subclass 485 – Temporary Graduate

    485.216

    (1)The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4020 and 4021.

    (2)If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

    (3)Each member of the family unit of the applicant who is an applicant for a Subclass 485 visa satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020.

    (4)Each member of the family unit of the applicant who:

    (a)is an applicant for a Subclass 485 visa; and

    (b)had turned 18 at the time of application;

    satisfies public interest criteria 4019.

    (5)Each member of the family unit of the applicant who:

    (a)is an applicant for a Subclass 485 visa; and

    (b)has not turned 18; and

    (c)made a combined application with the applicant;

    satisfies public interest criteria 4015 and 4016.

    2.03AACriteria applicable to character tests and security assessments

    (1)In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

    (2)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.

    Note:For paragraph (a), an example of an appropriate authority is a police force.

    (3)The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.