Diao (Migration)

[2018] AATA 5842

Diao (Migration) [2018] AATA 5842 (10 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Haishuo Diao

CASE NUMBER:  1834662

HOME AFFAIRS REFERENCE(S):           BCC2018/3007310

MEMBER:Alison Mercer

DATE:10 December 2018

PLACE OF DECISION:  Melbourne

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) of the Regulations.

Statement made on 10 December 2018 at 12:34pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Australian Federal Police Complete Disclosure certificate provided – no criminal record in Australia – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360(2)(a)
Migration Regulations 1994, r 2.03AA, Schedule 2, cl 485.216, PIC, 4001, 4002

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 14 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 10 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). 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 14 November 2018 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide a Complete Disclosure certificate from the Australian Federal Police (AFP). The delegate found that the applicant provided a Standard Disclosure AFP certificate, but the Department required a Complete Disclosure certificate. The delegate therefore found that the applicant did not meet r.2.03AA(2)(a), and did not consider it unreasonable for her to do so, so did not waive the requirement to meet r.2.03AA(2)(a) pursuant to r.2.03AA(3). The delegate found that the applicant therefore did not meet PIC 4001 for the purposes of cl.485.216.

6. The Tribunal received a review application from the applicant on 26 November 2018.  It was accompanied by a copy of the delegate’s decision. On 27 November 2018, the Tribunal received a copy of (amongst other things), a Complete Disclosure certificate issued to the applicant by the AFP on 16 November 2018, indicating that there are no disclosable outcomes recorded against her name.  Her migration agent made written submissions indicating that this was sufficient to satisfy r.2.03AA(2).

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. 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 section 360(2)(a) of the Act.

   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.

   Has the applicant provided a statement from an appropriate authority?

9. The Departmental file indicates that although the applicant stated in her online visa application form that she had applied for an AFP check before making the visa application on 10 August 2018, she subsequently provided a Standard Disclosure AFP certificate and did not respond to a request from the Department to provide the Complete Disclosure AFP check. No Complete Disclosure AFP check had been provided at the time that the delegate made the decision to refuse to grant the applicant a visa.

10. However, the applicant has now provided to the Tribunal an AFP Full Disclosure check issued to her on 16 November 2018 indicating she has no criminal record in Australia.

11. Accordingly, the Tribunal is satisfied that the applicant has now provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

    Conclusion

12. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

13. On the basis of the above findings, the Tribunal is satisfied that the applicant meets r.2.03AA(2).

    DECISION

14. 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).

    Alison Mercer
    Member