Fu (Migration)

[2022] AATA 4084

Fu (Migration) [2022] AATA 4084 (21 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yanhui Fu
Mrs Yueye Wang
Master Jinao Fu

REPRESENTATIVE:  Mr Mitchell Simmons

CASE NUMBER:  2207767

HOME AFFAIRS REFERENCE(S):          BCC2020/2388714

MEMBER:Wan Shum

DATE:21 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·Regulation 2.03AA.

Statement made on 21 July 2022 at 9:46am

CATCHWORDS  
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – character test – statement from an appropriate authority – Australian Federal Police (AFP) National Police Certificate – no disclosable court outcomes – decision under review remitted 

LEGISLATION 
Migration Act 1958 (Cth), ss 65, 360 
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cls 485.216, 485.311; 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 11 May 2022 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 29 September 2020. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 visas finding that the first named applicant (the applicant) did not provide a police clearance certificate or other statement by an appropriate authority in Australia regarding his criminal history and was found not to satisfy the criterion in reg 2.03AA. The other applicants were refused on the basis that they did not satisfy cl 485.311.

4. The applicants sought review of that decision and provided a copy of a Digital National Police Certificate issued by the Australian Federal Police.

5. 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 s 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets reg 2.03AA, and in particular subregulation (2) which needs to be met in cases where a person is required to satisfy Public Interest Criteria (PIC) 4001 or PIC 4002 for the grant of a visa, unless the Minister has decided to waive the requirement. The additional criterion in reg 2.03AA applies to all current applications and requires an applicant to provide documentation or information relating to the applicant’s criminal history if requested by the Minister: reg 2.03AA(2).

7. Regulation 2.03AA(2) is prescribed in this case because cl 485.216(1) requires that the applicant meet various PIC for the grant of a Subclass 485 visa, which includes PIC 4001.

8. The Department wrote to the applicant on numerous occasions requesting a copy of the Australian Federal Police (AFP) National Police Certificate. A certificate meeting the Department’s requirements was not provided before the decision was made.

9. On review, the Tribunal was provided with a copy of an ‘Immigration/Citizenship Australia – name check only’ certificate issued by the AFP dated 7 June 2022 which confirms that the applicant had no disclosable court outcomes recorded against his name.

10. Given this, the Tribunal finds that the applicant satisfies the criterion in reg 2.03AA(2)(a) and thus meets reg 2.03AA.

11. The Tribunal remits the matter with a direction that the applicant satisfies reg 2.03AA. A delegate of the Minister is now able to assess whether the applicant meets PIC 4001 for the purposes of cl 485.216 and the remaining criteria for the grant of a Subclass 485 visa to the applicants.  

    DECISION

12. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    ·Regulation 2.03AA.

    Wan Shum
    Member