Gao (Migration)

[2020] AATA 4015

Gao (Migration) [2020] AATA 4015 (17 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xiang Gao

CASE NUMBER:  2001675

DIBP REFERENCE(S):  BCC2019/4762765

MEMBER:K. Chapman

DATE:17 July 2020

PLACE OF DECISION:  Brisbane

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 17 July 2020 at 3:39pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – providing evidence about criminal history – Australian Federal Police Complete Disclosure National Police Certificate – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 485.216, rr 2.03; Public Interest Criterion (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 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 September 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 to 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 10 January 2020 on the basis that the applicant did not meet r.2.03AA because he failed to provide a Complete Disclosure National Police Certificate from the Australian Federal Police (AFP) as requested.

6. The Tribunal did not consider a hearing to be necessary in this matter, 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.

7. Accordingly, for the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant has provided a statement by an appropriate authority in Australia that provides evidence about whether or not he has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

9. The applicant provided a copy of an AFP Standard Disclosure Certificate with his visa application. He was subsequently requested by the Department to provide a Complete Disclosure National Police Certificate from the AFP, however he failed to do so.

10. The Tribunal is satisfied that the delegate made a request for the applicant to provide a Complete Disclosure certificate from an appropriate authority, which in this case is the AFP, in a country where the applicant resides or has resided. In the circumstances, the applicant must provide the requested statement to satisfy r.2.03AA.

11. The applicant submitted to the Tribunal a copy of a Complete Disclosure National Police Certificate dated 2 January 2020 issued by the AFP. The Certificate indicates there are no disclosable court outcomes recorded against the applicant’s name. Accordingly, the applicant has provided a statement from an appropriate authority and therefore satisfies r.2.03AA(2)(a).

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 applicant satisfies 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).

    K. Chapman
    Member