Guadix Lopez (Migration)

[2019] AATA 296

Guadix Lopez (Migration) [2019] AATA 296 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Miguel Guadix Lopez

CASE NUMBER:  1822652

DIBP REFERENCE(S):  BCC2018/2104981

MEMBER:K. Chapman

DATE:7 February 2019

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 07 February 2019 at 10:38am

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 15 May 2018. 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 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 16 July 2018 on the basis that the applicant did not meet r.2.03AA because he did not 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 National Police Certificate dated 14 April 2018 issued by the New South Wales Police Force with his visa application. On 5 June 2018, the applicant was requested by the Department to provide a Complete Disclosure National Police Certificate from the AFP within 28 days. The applicant 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 has to 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 24 July 2018 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. For completeness, the Tribunal notes that the applicant provided to the Department a clean criminal record check from the Spanish authorities and a completed Form 80.

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