Karki (Migration)

[2019] AATA 4048

Karki (Migration) [2019] AATA 4048 (16 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ropson Karki

CASE NUMBER:  1911930

DIBP REFERENCE(S):  BCC2018/5868169

MEMBER:Ian Berry

DATE:16 July 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 16 July 2019 at 12:37pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – criminal history check – evidence 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

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 28 December 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 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 23 April 2019 on the basis that the applicant did not meet r.2.03AA because the applicant was requested to supply a statement from a relevant authority, more particularly and Australian Federal Police certificate evidencing the applicant does not have a criminal history record.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this 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, more particularly and Australian Federal Police certificate as requested by the Department.

   Has the applicant provided a statement from an appropriate authority?

8. The applicant applied for and received a Queensland police clearance certificate mistakenly believing that such a certificate was the document required by the Department. In his evidence, the applicant made reference to his working for the Queensland Police Service.

9. The Tribunal notes that the applicants visa application (Record of Responses) my 28 December 2018, in answer to the question ‘have you and all persons included in this application who are 16 years or over, applied in the last 12 months to the Australian Federal Police for a cheque of criminal records?”. The applicant responded ‘yes’.

10. The application obtained other information relevant to the Australian Federal Police check. On page 8 of 10, the applicant stated he applied for his check on 27 December 2018, that is, the day before making his application. The reference number inserted by him was Q NPC – 151463 which seems reasonably clear to be a Queensland Police Service reference number.

11. On 12 March 2019, the Department provided the applicant with a checklist requiring further information in respect of three subjects one of which was the supply of and Australian Federal Police check.

12. In response, the applicant provided the Department with a document entitled ‘Digital National Police Certificate’ dated to be valid as at 28 December 2018. The certificate supplied, records that it refers to the applicant and had the following notation:

    “KARKI, ROPSON… Date of Birth 01-12-1992… Is NOT recorded by the Australian Police jurisdictions with any disclosable court outcomes”.

13. The above document contained explanatory notes the first to which are set out hereunder:

    ·A disclosable court outcome is one that is recorded by the court and has not been rehabilitated or spent under the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) and, in the case of Commonwealth convictions, the Crimes Act 1914 (Commonwealth), and does not breach the confidentiality provisions of the Youth Justice Act 1992 (Qld).

    ·This certificate lists national disclosable court outcomes.

14. On 23 April 2019 the applicant was advised by the Department his visa application had been refused and a copy of the decision was attached. The applicant provided this Tribunal with a copy of that decision.

15. Sensibly, the applicant applied for and obtained a National Police Certificate issued by the Australian Federal Police dated 30 April 2019, certifying that there are no disclosable court outcomes recorded in the name of the applicant.

16. The applicant has provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

17. Regulation 2.03AA is set out below:

    Regulation 2.03AA Criteria applicable to character tests and security assessments

    (1)         In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

    (2)         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.

    Note:  For paragraph(a), an example of an appropriate authority is a police force.

    (3)         The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.

    Conclusion

18. 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.

19. On the basis of the above findings, the applicant meets r.2.03AA(2).

    DECISION

20. 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).

    Ian Berry
    Member