Dewar (Migration)

[2019] AATA 3529

Dewar (Migration) [2019] AATA 3529 (20 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Charlotte Victoria Dewar

CASE NUMBER:  1914160

DIBP REFERENCE(S):  BCC2018/1780869

MEMBER:Jennifer Cripps Watts

DATE:20 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 visa:

·Regulation 2.03AA(2)(a)

Statement made on 20 June 2019 at 4:30pm

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) – Subclass 189 Skilled Independent – criminal history check – evidence provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 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 Immigration (the delegate) to refuse to grant the applicant a Skilled Independent (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 April 2018. The criteria for a Skilled Independent (Permanent) 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.189.211 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. 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 (however described) 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 16 May 2019 on the basis that the applicant did not meet r.2.03AA because the delegate requested, in writing, a statement from a relevant authority (r.2.03AA(2)(a)) and the applicant did not provide the requested statement.  The requested statement was an Australian Federal Police (AFP) National Police Check, described by the delegate was a ‘Complete Disclosure’ AFP National Police Certificate (AFP Check) together with detailed information about how to obtain the statement.

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 an AFP Check.  The applicant provided evidence of having applied for a New South Wales Police check in April 2018 with her visa application.  The Department made two requests for the AFP Check, on 1 June and 3 December 2018.  On both occasions, the applicant provided the New South Wales Police check.

8. The applicant has provided a statement to the Tribunal and says that she did not realise the Police check she provided was not the right one.  The visa was refused, essentially, because she did not provide the AFP Check that was requested and, for that reason, she did not meet r.2.03AA(2)(a).

9. The applicant has now provided the Tribunal with an AFP Check, dated 24 May 2019, that states there are no disclosable court outcomes recorded against her.

10. The Tribunal is satisfied, on the evidence, that the applicant has provided a statement by an appropriate authority that provides evidence about whether or not she has a criminal history and that she therefore meets r.2.03AA(2)(a).

    Conclusion

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

    DECISION

12. The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 visa:

    ·Regulation 2.03AA(2)(a).

    Jennifer Cripps Watts
    Member