Deverapalli (Migration)

[2019] AATA 4852

Deverapalli (Migration) [2019] AATA 4852 (28 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Neha Deverapalli

CASE NUMBER:  1927877

DIBP REFERENCE(S):  BCC2019/3646015

MEMBER:R. Skaros

DATE:28 October 2019

PLACE OF DECISION:  Sydney

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:

·Regulation 2.03AA(2)(a).

Statement made on 28 October 2019 at 4:47pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Public Interest Criterion 4001 – no authorised police clearance submitted to delegate – Australian police check provided to Tribunal – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA(2)(a), 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 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 July 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 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 visa on 1 October 2019 on the basis that the applicant did not meet r.2.03AA because the applicant failed to provide an AFP Complete Disclosure certificate when requested by the delegate.

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. On 29 August 2019, the applicant was requested by the Department to provide an Australian Federal Police (AFP) clearance National Police Check.  The applicant had not provided the requested information within the period allowed by the delegate. The delegate proceeded to refuse the application on the basis that the applicant did not provide the requested police clearance certificate.

9. On review, the applicant provided a copy of her AFP Complete Disclosure certificate issued on 4 June 2019, showing no disclosable outcomes.

10. The Tribunal finds that the applicant has now provided the requested statement from the appropriate authority about whether or not she has a criminal history.  The applicant therefore meets r.2.03AA(2)(a).

    DECISION

11. 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:

    ·Regulation 2.03AA(2)(a).

    R. Skaros
    Senior Member