Dela Cruz (Migration)

[2019] AATA 189

Dela Cruz (Migration) [2019] AATA 189 (21 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Roberto Jr Dela Cruz

CASE NUMBER:  1835926

HOME AFFAIRS REFERENCE(S):           BCC2018/3178007

MEMBER:Danielle Galvin

DATE:21 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional)(Class VC) visa for reconsideration, with a direction that the applicant meets the following criteria for a Subclass 485 (Temporary Graduate) visa;

·Regulation 2.03AA(2)(a).

Statement made on 21 January 2019 at 3:28pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary graduate) – police clearance – “Complete Disclosure” AFP National Police Certificate provided to Tribunal – decision made on the papers – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360

Migration Regulations 1994 (Cth), r 2.03AA Schedule 4 PIC 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 22 November 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 August 2018. 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 (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 on 22 November 2018 because the applicant did not satisfy cl.485.216 of Schedule 2 to the Regulations. It is a requirement of that clause that the applicant satisfies Public Interest Criterion (PIC) 4001. Regulation 2.03AA(2)(a) prescribes that where a person is required to satisfy PIC 4001 for the grant of a visa, they must provide a statement (howsoever described) provided by an appropriate authority in a country where they reside, or have resided, that provides evidence about whether or not the person has a criminal history (if such a statement has been requested by the Minister).

4. The applicant had stated in their application to the Department that they had sought an Australian Federal Police (AFP) check of criminal records however such a document was not submitted with the application.

5. On 1 October 2018 the Department requested, by email, that the applicant provide evidence of an AFP National Police Check by way of a “Complete Disclosure: AFP National Police Check within 28 days after having been taken to have received that email.

6. On 1 October 2018 the applicant provided a “Standard Disclosure” AFP National Police Certificate dated 16 August 2018 to the Department. This document did not satisfy the Department’s request and therefore the application for the visa was refused on 22 November 2018.

7. The applicant has made an application to the Tribunal for review of that decision on 7 December 2018 and provided a copy of a “Complete Disclosure” AFP National Police Certificate dated 28 November 2018.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of r.2.03AA(2)(a).

    Evidence relating to police checks

11. Clause 485.213 requires that when the visa application was made, it was accompanied by evidence that the applicant, and each person included in the application who is at least 16, had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.

12. As noted by the delegate, r.2.03AA(2)(a) requires that, if requested, the applicant provide a statement (howsoever described) from an authority in a country where they reside or have resided, that provides evidence about whether or not they have a criminal history. The applicant ultimately provided the requested “Complete Disclosure “AFP National Police Check to the Tribunal in support of the merits review but the document did not exist at the time of the delegate’s decision. The Certificate indicated that there were no discernible court outcomes in relation to offences relating to the applicant,.

13. From the material before it the Tribunal finds that the applicant had applied for the required document, however, the document had not been created until after the Department decision.

14. Given the findings above, the appropriate course is to remit the application to the Minister to consider the remaining criteria.

15. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

16. The Tribunal remits the decision under review with the direction that the applicant meets

    ·Regulation 2.03AA(2)(a).

    Danielle Galvin
    Member