Kamal Alddin (Migration)

[2018] AATA 2000

Kamal Alddin (Migration) [2018] AATA 2000 (17 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Maisie Kamal Alddin

CASE NUMBER:  1813091

DIBP REFERENCE(S):  BCC2017/4766799

MEMBER:Cathrine Burnett-Wake

DATE:17 May 2018

PLACE OF DECISION:  Melbourne

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 May 2018 at 10:57am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Criminal history – Complete disclosure AFP check – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 2.03AA, Schedule 2 cl 485.216

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 on 3 May 2018 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 13 December 2017. 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 3 May 2018 on the basis that the applicant did not meet r.2.03AA(2) because the applicant did not provide a Complete Disclosure certificate from the Australian Federal Police (AFP), despite being requested to do so. The delegate found that the applicant therefore did not meet r.2.03AA(2)(a), and did not consider it unreasonable for her to do so, so did not waive the requirement to meet r.2.03AA(2)(a) pursuant to r.2.03AA(3). The delegate found that the applicant therefore did not meet PIC 4001 for the purposes of cl.485.216.

6. The Tribunal received a review application from the applicant on 7 May 2018. It was accompanied by a copy of the delegate’s decision.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. 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 section 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Has the applicant provided a statement from an appropriate authority?

9. The Departmental file indicates that the applicant stated in her online visa application form that she had applied for an AFP check before making the visa application on 13 December 2017. On 8 January 2018, the Department wrote to the applicant requesting an AFP check issued with a Complete Disclosure be provided. The applicant was given 28 days to provide the Complete Disclosure AFP check.  On 1 May 2018, the applicant provided the Department with an AFP check issued with a Standard Disclosure.

10. As the applicant provided a Standard Disclosure AFP check and not a Complete Disclosure AFP check the delegate made the decision to refuse to grant the applicant a visa.

11. However, the applicant has now provided to the Tribunal a Complete Disclosure AFP check indicating she has no criminal record in Australia.

12. Accordingly, the Tribunal is satisfied that the applicant has now provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

    Conclusion

13. 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.

14. On the basis of the above findings, the Tribunal is satisfied that the applicant meets r.2.03AA(2).

    DECISION

15. 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).

    Cathrine Burnett-Wake
    Member