Dao (Migration)

[2022] AATA 394

Dao (Migration) [2022] AATA 394 (21 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hai Yen Dao

REPRESENTATIVE:  Mr Thien Chinh Pham

CASE NUMBER:  2201553

HOME AFFAIRS REFERENCE(S):          BCC2020/267481

MEMBER:Wan Shum

DATE:21 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·Regulation 2.03AA.

Statement made on 21 February 2022 at 9:53am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history statement – AFP certificate provided to tribunal – no disclosable court outcomes – decision made 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 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 2 February 2020. The delegate refused to grant the visa on 24 January 2022.

2. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criterion in r.2.03AA 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).

3. The applicant sought review of that decision and provided a copy of a National Police Certificate issued by the Australian Federal Police.

4. 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

5. The issue in the present case is whether the applicant meets reg 2.03AA.

6. This is relevant to consideration of whether Public Interest Criterion 4001 is met. Clause 485.216(1) requires that the applicant meet various Public Interest Criteria (PIC) for the grant of a Subclass 485 visa, which includes PIC 4001. Where a person is required to satisfy PIC 4001 for the grant of a visa, there are additional criteria prescribed under reg 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 reg 2.03AA applies to all current applications.  

7. 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.

8. 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.

9. The Department wrote to the applicant on 31 March 2020 requesting a copy of the AFP clearance National Police Check, and other documents. It appears that the application was given a ‘finalised’ status, but that no decision was notified until 24 January 2022, when the applicant’s newly appointed representative sought clarification from the Department regarding the anomaly. It appears that no explanation was provided to the applicant but in any case, it does appear that the certificate was not properly uploaded to the Immigration website or otherwise received before the decision was made.

10. On review, the applicant provided a number of documents including a photograph of her AFP certificate dated 1 February 2020 which confirmed that she had no disclosable court outcomes recorded against his name.

11. As the applicant has now complied with the request to provide evidence of an AFP certificate, the Tribunal finds that the applicant satisfies the criterion in r.2.03AA(2)(a) and thus meets r.2.03AA.

12. 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 PIC 4001 for the purposes of cl 485.216 as well as the remaining criteria for the grant of a Subclass 485 visa.   

    DECISION

13. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·Regulation 2.03AA.

    Wan Shum
    Member