Dsouza (Migration)

[2021] AATA 4723

Dsouza (Migration) [2021] AATA 4723 (2 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Gargi Francis Dsouza

CASE NUMBER:  2114269

HOME AFFAIRS REFERENCE(S):          BCC2020/2889665

MEMBER:Denise Connolly

DATE:2 November 2021

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).

Statement made on 02 November 2021 at 1:44pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa –copy of a National Police Certificate provided– no disclosable outcomes recorded against the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA, Schedule 2, cl 485.216

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).

2. The applicant applied for the visa on 27 December 2020. The criteria for a Skilled (Provisional) (Class VC) visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (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: reg 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 reg 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 reg 2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 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 6 October 2021 on the basis that the applicant did not meet reg 2.03AA because the applicant did not provide an Australian Federal Police Complete Disclosure/Immigration Citizenship certificate as requested by the delegate on 24 August 2021.

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 24 August 2021 the delegate made a request for the applicant to provide a Complete Disclosure/Immigration Citizenship Australian Federal Police Certificate. The applicant provided an Australian Federal Police Overseas Employment-General Employment clearance which is not the Complete Disclosure/ Immigration Citizenship Australian Federal Police clearance requested by the Department.

9. The applicant has now provided to the Tribunal a copy of a National Police Certificate - Complete Disclosure/Immigration Citizenship certificate issued by the AFP on 8 October 2021 certifying that there are no disclosable outcomes recorded against the applicant as at 8 October 2021.

10. The applicant has now provided the statement sought by the delegate, from an appropriate authority, and therefore meets reg 2.03AA(2)(a).

    Conclusion

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

12. On the basis of the above findings, the applicant meets reg 2.03AA(2).

    DECISION

13. 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).

    Denise Connolly
    Member