JIAN (Migration)

[2019] AATA 4049

JIAN (Migration) [2019] AATA 4049 (16 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yixin JIAN

CASE NUMBER:  1916730

HOME AFFAIRS REFERENCE(S):           BCC2019/1274247

MEMBER:Wan Shum

DATE:16 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:

·Regulation 2.03AA

Statement made on 16 July 2019 at 3:46pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – criminal history check – disclosure certificate provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 485.216, r 2.03AA, 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 Home Affairs on 7 June 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 485 visa on 13 March 2019. 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).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criterion in r.2.03AA. The delegate found that the applicant did not meet cl.485.216 because the applicant did not provide the information or the documents prescribed in r.2.03AA. Regulation 2.03AA applies in this case because the applicant is required to satisfy PIC 4001, which is one of the public interest criteria in cl.485.216(1).

4. The applicant sought review of that decision and was represented in relation to the review by a registered migration agent.

5. She has now provided a Complete Disclosure certificate issued by the Australian Federal Police.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets r.2.03AA.

8. One of the criteria for the grant of a Subclass 485 visa is cl.485.216 which requires that the applicant meets Public Interest Criteria including PIC 4001. Where a person is required to satisfy PIC 4001 for the grant of a visa, there are additional criteria prescribed under r.2.03AA that must be met for the grant of visa. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s criminal history. The additional criterion in r.2.03AA applies to all current applications.  

9. Regulation 2.03AA(1) states that in addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or PIC 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

10. Regulation 2.03AA(2) provides that if the Minister has requested the following documents or information, the person has provided the documents or information:

    (a)  a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

    (b)  a completed approved form 80.

11. As part of the visa application, the applicant indicated that she had applied to the Australian Federal Police for a check of criminal records and provided a reference number, and submitted a “Standard Disclosure Australian Federal Police clearance”. The Department wrote to the applicant requesting she obtain a “Complete Disclosure Australian Federal Police clearance” but it was not provided before the decision was made.

12. On review, the applicant has provided a Complete Disclosure National Police Certificates dated 14 June 2019 confirming that she had no disclosable court outcomes recorded against her name.

13. As the applicant has complied with the request to provide an AFP certificate, the Tribunal finds that the applicant satisfies the criterion in r.2.03AA(2)(a).

14. While the delegate found that the applicant did not satisfy cl.485.216, this finding was made on the basis that the applicant did not provide an AFP Complete Disclosure National Police Certificate and was thus found not to meet r.2.03AA.

15. As the Complete Disclosure National Police Certificate issued by the Australian Federal Police has been provided on review, the delegate is now able to assess whether the applicant meets PIC 4001 and cl.485.216.

16. The Tribunal remits the matter with a direction that the applicant satisfies r.2.03AA. The Minister is now in a position to undertake consideration of whether the applicant meets cl.485.216 and the remaining criteria for the grant of a Subclass 485 visa.   

    DECISION

17. 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.

    Wan Shum
    Member