Chu (Migration)

[2019] AATA 5484

Chu (Migration) [2019] AATA 5484 (28 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shidong Chu

CASE NUMBER:  1917450

HOME AFFAIRS REFERENCE(S):          BCC2018/4261048

MEMBER:Wan Shum

DATE:28 August 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

Statement made on 28 August 2019 at 2:51pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – providing details of criminal history – Australian Federal Police Complete Disclosure certificate provided upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.216; Schedule 4 Public Interest Criterion 4001; r 2.03

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 25 June 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 485 visa on 1 October 2018.

3. 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).

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.216 because the applicant did not provide the information or the documents prescribed in r.2.03AA. Regulation 2.03AA applies in this case because the applicant is required to satisfy PIC 4001, which is one of the public interest criteria in cl.485.216(1).

5. The applicant sought review of that decision. He has now provided a Complete Disclosure certificate issued by the Australian Federal Police.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets r.2.03AA.

8. One of the criteria for the grant of a Subclass 485 visa is cl.485.216 which requires that the applicant meets Public Interest Criteria including PIC 4001. Where a person is required to satisfy PIC 4001 for the grant of a visa, there are additional criteria prescribed under r.2.03AA that must be met for the grant of visa. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s criminal history. The additional criterion in r.2.03AA applies to all current applications.  

9. Regulation 2.03AA(1) states that in addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or PIC 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

10. Regulation 2.03AA(2) provides 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.

11. As part of the visa application, the applicant indicated that he had applied to the Australian Federal Police for a check of criminal records and provided a reference number 4818086PC.  The Department wrote to the applicant on three separate occasions requesting a copy of the AFP clearance National Police Check but the applicant provided Standard Disclosure AFP clearance in response each time. As it was not provided, the decision to refuse to grant the visa was made.

12. On review, the applicant provided a Complete Disclosure National Police Certificate dated 2 July 2019 confirming that he had no disclosable court outcomes recorded against his name. The Complete Disclosure National Police Certificate dated 2 July 2019 had a different reference number 5621295PC than that which was cited on his visa application.

13. The Tribunal wrote to the applicant on 15 July 2019 requesting evidence to show that he had applied for the AFP check during the 12 months immediately before the day the visa application was made and a copy of the AFP Complete Disclosure National Police certificate.

14. In response, the applicant provided the Complete Disclosure National Police Certificate dated 18 July 2019 with reference number 4818086PC. He also provided receipt showing reference number 4818086PC, indicating that he had applied for the AFP check on 30 September 2018. The applicant explained that he did not receive his original Complete Disclosure National Police certificate with reference number 4818086PC as the AFP was awaiting his signature and he did not receive the request for it.

15. The applicant explained that he provided the Department with Standard Disclosure AFP clearances in response to each request as the cost of the Standard Disclosure and the Complete Disclosure are the same and he did not realise he was ordering the wrong one. He further explained that as he did not receive his original request for AFP National Police Check (reference number 4818086PC), he had applied for a new one (reference 5621295PC).

16. As the applicant has now complied with the request to provide an AFP Complete Disclosure National Police Certificate, the Tribunal finds that the applicant satisfies the criterion in r.2.03AA(2)(a).

17. While the delegate found that the applicant did not satisfy cl.485.216, this finding was made on the basis that the applicant did not provide an AFP Complete Disclosure National Police Certificate and was thus found not to meet r.2.03AA.

18. As the Complete Disclosure National Police Certificate issued by the Australian Federal Police has been provided on review, the delegate is now able to assess whether the applicant meets PIC 4001 and cl.485.216.

19. The Tribunal remits the matter with a direction that the applicant satisfies r.2.03AA. The Minister is now in a position to undertake consideration of whether the applicant meets cl.485.216 and the remaining criteria for the grant of a Subclass 485 visa.   

    DECISION

20. 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

    Wan Shum
    Member