Coronado (Migration)

[2023] AATA 582

Coronado (Migration) [2023] AATA 582 (10 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Lovelle Arcilla Coronado
Mr Raymond Betoy Gutierrez
Master Daniel James Coronado Gutierrez
Miss Bianca Ysabelle Coronado Gutierrez

CASE NUMBER:  2214256

HOME AFFAIRS REFERENCE(S):          BCC2020/1130010

MEMBER:Brendan Darcy

DATE:10 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·Regulation 2.03AA(2)

Statement made on 10 February 2023 at 2:04pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – copy of a National Police Certificate provided– decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 2.03AA

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 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 12 March 2020. The criteria for a Skilled (Provisional) (Class VC) visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (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: reg 2.03AA(1). In this case, 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 reg 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 reg 2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 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 visas on 5 September 2022 on the basis that the first named applicant did not meet reg 2.03AA because no statement provided by an appropriate authority in a country where the first named applicant resides, or has resided, that provides evidence about whether or not the person has a criminal history.

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. After assessing the visa application, a delegate acting on behalf of the Minister sent the applicant a letter by email on 27 May 2020 requesting further information, which included a request for a police certificate from Australia.

9. On 19 January 2021, the applicant submitted to the Department an AFP Complete Disclosure clearance date 6 March 2020, which was due to expire on 6 March 2021.

10. On 3 November 2021, the Department sent a further email required for an updated AFP clearance given the previous AFP clearance had expired. As at 5 September 2022, Departmental systems verified the applicant did not provide a new AFP Complete Disclosure/Immigration Citizenship clearance. The delegate then proceeded to refused the applicants Subclass 485 visas on 5 September 2022.

11. An application to have delegate’s refusal decision reviewed by the Tribunal was validly lodged on 22 December 2022.

12. On 13 January 2023, the Tribunal received a National Police Certificate (Complete Disclosure AFP Certificate) dated 7 February 2021 pertaining to the first named applicant. The document was issued by the Australian Federal Police.

13. This document or statement is suitable for the purposes of subregulation 2.03AA(2)(a).

14. Based on this information, no scheduled hearing was required to reach a favourable decision in this matter.

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

    DECISION

16. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    ·Regulation 2.03AA(2).

    Brendan Darcy
    Member