Chua (Migration)

[2021] AATA 4721

Chua (Migration) [2021] AATA 4721 (2 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Dominique Chua

CASE NUMBER:  2112727

HOME AFFAIRS REFERENCE(S):          BCC2020/464731

MEMBER:Amanda Mendes Da Costa

DATE:2 December 2021

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 of Schedule 2 to the Regulations.

Statement made on 2 December 2021 at 10.38am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – character test – Veritas Check provided to department – departmental policy requires AFP complete disclosure certificate – AFP immigration/citizenship name check only certificate provided to tribunal – provisions satisfied – decision without hearing necessary – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), r 2.03AA(1), (2)(a), Schedule 2, cl 485.216(1), 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 17 September 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 17 February 2020. 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 of Schedule 2 to the Regulations because she does not meet the requirements of Public Interest Criterion (PIC) 4001.

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 of Schedule 2 to the Regulations.

7. The issue in the present case is whether the applicant meets the requirements of cl.485.216 of Schedule 2 to the Regulations.

8. 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.

9. 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.

10. The delegate noted that although the applicant had provided the Department with a ‘Veritas Check National Police History Check’, he had not provided an AFP ‘Complete Disclosure’ certificate required by the Department.  The delegate found that 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 Tribunal has provided the Tribunal with an AFP ‘National Police Certificate, Immigration/Citizenship-Australia Name Check Only’ dated 10 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 required to provide a 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.

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 of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member