Ho (Migration)

[2019] AATA 3315

Ho (Migration) [2019] AATA 3315 (19 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yin Yee Ho

CASE NUMBER:  1917223

HOME AFFAIRS REFERENCE(S):          BCC2019/1031938

MEMBER:Roslyn Smidt

DATE:19 July 2019

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:

·cl.485.213 of Schedule 2 to the Regulations; and

·cl.485.216 (1) of Schedule 2 to the Regulations.

Statement made on 19 July 2019 at 1:02pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police check – partial disclosure – appropriate full disclosure certificate received – no disclosable court outcomes – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 485.213, 485.216; 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 26 June 2019 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 1 March 2019. 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). 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 visa because the applicant did not satisfy cl.485.216 of Schedule 2 to the Regulations as the delegate found that the applicant had not satisfied PIC 4001 given the absence of a complete police check disclosure with the application.

4. The Tribunal notes that the applicant submitted a partial disclosure with his initial application. On 15 April 2019 he was asked to provide the appropriate full disclosure certificate. On 21 May 2019 he provided another partial disclosure certificate.

5. On 28 June 2019 the AFP provided the applicant with a Complete Disclosure stating that in relation to the applicant “there are no disclosable court outcomes recoded against the applicant's name”, which has been provided the Tribunal.

6. Therefore the applicant satisfies cl.485.213.

7. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

   DECISION

8. 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:

   ·cl.485.213 of Schedule 2 to the Regulations; and

   ·cl.485.216 (1) of Schedule 2 to the Regulations.

   Roslyn Smidt
   Member