Chan (Migration)

[2019] AATA 6033

Chan (Migration) [2019] AATA 6033 (30 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ka Wai Chan

CASE NUMBER:  1918003

HOME AFFAIRS REFERENCE(S):          BCC2019/1361616

MEMBER:Stavros Georgiadis

DATE:30 September 2019

PLACE OF DECISION:  Adelaide

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:

· PIC 4001 r.2.03AA(2)(a) for the purposes of cl.485.216(3) of Schedule 2 to the Regulations.

Statement made on 30 September 2019 at 11:52am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – public interest criterion – criminal history statement – Australian Federal Police standard disclosure and complete disclosure statements – standard disclosure statement a ‘statement (however described)’ – complete disclosure statement provided later – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA(2)(a), (3), Schedule 2, cl 485.216(3), Schedule 4, criterion 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 Home Affairs on 5 July 2019 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 18 March 2019. 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 (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 delegate considered the applicant did not satisfy Public Interest Criterion (PIC) 4001 r.2.03AA(2)(a) for the purposes of cl.485.216(3) of Schedule 2 to the Regulations on the basis that the applicant did not provide evidence by an appropriate authority in a country where she resides, about whether or not she has a criminal history (an AFP clearance certificate).

4. The applicant appeared before the Tribunal on 30 September 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Where a person is required to satisfy police clearance criteria under PIC 4001 for the grant of a visa as is the case here, there are certain criteria prescribed under r.2.03AA that must be met for the grant of visa. These criteria relevantly, require the applicant to provide requested documentation or information relating to her criminal history. The criterion in r.2.03AA applies to all current applications.[1] This additional criterion is essentially a codification of a longstanding administrative practice of the Department of requesting that applicants provide police clearances and criminal histories from countries where they reside, or have previously resided, so that decision-makers can assess applicants’ ability to satisfy PIC 4001.[2]

   [1] Inserted by Migration Amendment (2014 Measures No.2) Regulation 2014 (SLI 2014 No.199) to apply to applications made on or after 12 December 2014, as well as those made prior to, but not finally determined as at that date.

   [2] Explanatory Statement to SLI 2014, No.199 at p.10-11

7. Regulation 2.03AA requires that where the Minister has requested certain documents or information, the person has provided the documents or information. The documents or information that can be requested are as follows:

   (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; and

   (b)a completed approved form 80.

8. In this case, the applicant has been requested to provide evidence by an appropriate authority in Australia, about whether or not she has a criminal history.  The term ‘appropriate authority’ is not defined in the Act or Regulations, although a note to r.2.03AA refers to ‘a police force’ as an example of such an authority. While the police force in a particular country may often be the relevant authority for the purposes of r.2.03AA, the question of what constitutes an ‘appropriate authority’ from any particular country is to be determined on the available evidence. Having regard to the purpose of the provision, the Tribunal accepts that this may include a person or body authorised to issue a statement of criminal history under Australian law.[3]  It is not disputed in these proceedings that the Australian Federal Police (AFP) is an appropriate authority for this purpose, and the Tribunal so finds.

   [3] For example, Criminal Records checks in Canada are administered by the Royal Canadian Mounted Police under the Criminal Records Act (R.S.C., 1985, c. C-47). Refer: (accessed9 August 2019).

9. Subject to the waiver provision under r.2.03AA(3) discussed further below, a failure to provide the evidence requested under r.2.03AA would mean that an applicant has failed to satisfy a criterion for the visa and the application must be refused on that basis. It is not open to find that an applicant satisfies PIC 4001 despite a failure to provide a statement as required under r.2.03AA(2).

   Waiver of the requirement in r.2.03AA

10. Under r.2.03AA(3), the Tribunal may waive the requirement to provide a statement from the appropriate authority where satisfied that it is not reasonable for the applicant to do so - depending on the relevant circumstances. For example, the waiver might be exercised where an applicant’s country is affected by a civil conflict and it may not be reasonable to require the statement.[4] There are no such circumstances evident here. The waiver also does not extend to consideration of whether the request for the statement was reasonable or otherwise ought to have been made. Regulation 2.03AA(2) applies where the Minister’s delegate, as is the case here, ‘has requested’ the statement.

    [4] Explanatory Statement to SLI 2014 No.199 at p.19

11. At the hearing, the applicant confirmed that she had provided a disclosure statement relating to the question of any criminal history relating to her, from the AFP dated 29 November 2018 (reference number 4983471PC), and a further statement from the AFP dated 8 July 2019 (reference number 5633928PC).  The consequential two AFP certificates have resulted from some confusion by the visa applicant due to personal circumstances described by her at the time, in respect of the particular type of certificate requested to be issued by the AFP when making her application. 

12. The Tribunal has considered the particular circumstances in this case where information was provided by the applicant from the AFP in respect of the question of whether or not she has a criminal history in Australia where she resides. As aforementioned, in the first instance, this comprised of a document dated 29 November 2018 titled ‘Standard Disclosure’ from the Australian Federal Police in respect of the applicant with reference number 4983471PC. This reference number is the same as that included in the visa application form lodged on 18 March 2019 in response to the question about any AFP clearance check ‘for all persons included in this application who are 16 years of age or over’.  The visa application lodged is only for the one person, the applicant, with a date of birth of 31 May 1994. The point of issue is that the AFP ‘Standard Disclosure’ AFP clearance is different to a ‘Complete Disclosure’ AFP clearance and this essentially formed the basis for the refusal. The Tribunal notes the ‘no disclosable court outcomes’ certification applying to both certificates issued by the AFP in respect of the applicant.

13. A consideration of the wording adopted in r.2.03AA(a) indicates documents or information that can be requested includes “a statement (however described) provided by an appropriate authority ...” The Tribunal accepts that the ‘Standard Disclosure’ AFP certificate which provides a statement by the AFP for ‘all recorded unspent offenses released’ comes within the ambit of the requirements of r.2.03AA(a) having found earlier, that the AFP is an ‘appropriate authority’ in Australia where the applicant resides, for this purpose. Further, the Tribunal accepts that this was provided to the delegate at the time of visa application.  The reference number and particulars recorded on the visa application form are the same as in the AFP certificate dated 29 November 2018. This predates the visa lodgement on 18 March 2019 by some four months and the Tribunal is satisfied, in these circumstances, that the applicant had provided AFP certification evidence with the application lodged.

14. The Tribunal is satisfied further that, at the time of this decision, there is evidence before it that the applicant has provided a ‘Complete Disclosure’ AFP clearance certificate for ‘all recorded offences released’ dated 8 July 2019 (reference number 5633928PC). This is the particular AFP certificate the delegate was pursuing at the time of decision on 5 July 2019.  Although it was issued 3 days after the refusal decision, it is evidence before the Tribunal at the time of making this decision.

15. The Tribunal is satisfied from the evidence discussed above that the applicant has provided evidence by an appropriate authority in a country where she resides, about whether or not she has a criminal history.

16. Accordingly, the Tribunal finds that at the time of decision, the applicant meets the requirements of PIC 4001 r.2.03AA(2)(a) for the purposes of cl.485.216(3) of Schedule 2 to the Regulations.

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

    DECISION

18. 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:

    ·PIC 4001 r.2.03AA(2)(a) for the purposes of cl.485.216(3) of Schedule 2 to the Regulations.

    Stavros Georgiadis
    Member