Bhatti (Migration)

[2019] AATA 3889

Bhatti (Migration) [2019] AATA 3889 (4 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Afifa Bhatti

CASE NUMBER:  1818254

DIBP REFERENCE(S):  BCC2018/1081339

MEMBER:Ian Berry

DATE:4 September 2019

PLACE OF DECISION:  Brisbane

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)

Statement made on 04 September 2019 at 10:17am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – statement by appropriate authority about criminal history provided – Australian Federal Police clearance provided – no disclosable court outcomes – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), r 2.03AA(2), Schedule 2, cl 485.216, 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 7 March 2018. 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 1 June 2018 on the basis that the applicant did not meet r.2.03AA because the applicant sent to the delegate a ‘Digital National Police Certificate’ issued by the Queensland police service and dated 3 May 2018..

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 provided to the Department details of her having applied for a police certificate including the receipt number.

9. The Minister’s delegate undertook a search of the receipt number given by the applicant and ascertained that as at 1 June 2018, Departmental systems cooperated the applicant did not provide the requested Australian Federal Police Complete Disclosure clearance.

10. The applicant did apply for a police certificate but the certificate was from the Queensland Police Service. The applicant was given 28 days within which to supply the correct certificate. As it was not supplied within the time required by the Department’s letter, the applicant’s visa was refused.

11. On 22 August 2019, the Tribunal corresponded with the applicant pursuant to s.359(2) inviting her to provide a Complete Disclosure Australian Federal Police National Police Certificate (the Certificate).

12. The applicant provided this Tribunal with the Certificate on 2 September 2019. The Certificate certified that there were not any disclosable court outcomes relating to the applicant.

13. The applicant has provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

    Conclusion

14. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

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

    DECISION

16. 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).

    Ian Berry
    Member