Dagvadorj (Migration)

[2020] AATA 4076

Dagvadorj (Migration) [2020] AATA 4076 (24 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ulsbold Dagvadorj
Miss Misheel Ulsbold
Mr Tugsbold Ulsbold
Mrs Michidmaa Natsagdorj

CASE NUMBER:  2002596

DIBP REFERENCE(S):  BCC2019/4228564

MEMBER:R. Skaros

DATE:24 September 2020

PLACE OF DECISION:  Sydney

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)(a).

Statement made on 24 September 2020 at 10:52am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history statement – AFP complete disclosure certificate provided to tribunal – no disclosable outcomes for first applicant – one finding of guilt with no conviction recorded for second applicant – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 2, cl 485.216, 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 Immigration to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 26 August 2019. 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 first named applicant (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 visas on 22 January 2020 on the basis that the applicant did not meet r.2.03AA because he did not provide an Australian Federal Police (AFP) Complete Disclosure Certificate as requested by the delegate

6. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. On 21 October 2019 the Department requested the applicant provide an AFP Complete Disclosure Certificate. On 24 October 2019 the applicant provided a National Crime Check certificate which was not the requested document. As such, the delegate found that the applicant did not satisfy r.2.03AA(2) or cl. 485.216 for the grant of the visa.

10. On 4 June 2020 the Tribunal received a copy of the AFP Complete Disclosure Certificate for the applicant dated 4 February 2020. This stated that there were no disclosable outcomes recorded against the applicant. In addition, an AFP Complete Disclosure Certificate was also provided for the applicant’s spouse, dated 7 February 2020. This showed that she had been found guilty of Unauthorised Dealing with shop goods on 12 April 2016. There was no conviction recorded and she was released on entering recognizance of $100 to be of good behaviour for 6 months. 

11. The Tribunal finds on the evidence before it that the applicant has provided the required statement from an appropriate authority and therefore he meets r.2.03AA(2)(a).

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

    DECISION

13. 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)(a).

    R. Skaros

    Senior Member