Lakod (Migration)

[2020] AATA 4075

Lakod (Migration) [2020] AATA 4075 (5 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jayrajsinh Aka Jayendrasinh Lakod
Mrs Vishakha Jayrajsinh Lakod

CASE NUMBER:  2002035

DIBP REFERENCE(S):  BCC2019/4843729

MEMBER:R.Skaros

DATE:5 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·Regulation 2.03AA(2)(a).

Statement made on 05 August 2020 at 6:33pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – statement from an appropriate authority – Australian Federal Police Complete Disclosure certificate – no disclosable court outcomes – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 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 Immigration to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 26 September 2019. 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 visas on 21 January 2020 on the basis that the first named applicant did not meet r.2.03AA because the applicant did not provide an acceptable Australian Federal Police (AFP) Complete Disclosure certificate to the Department.

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

7. 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 that provides evidence about whether or not the person has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

9. On 16 December 2019 the Department requested the first named applicant to provide an AFP Complete Disclosure certificate. He uploaded a certificate to the Departmental systems the same day. However, the name as stated on the certificate was not consistent with that set out in the first named applicant’s passport. As such the certificate was not considered acceptable to evidence that the first named applicant satisfied the relevant requirements. The delegate concluded he did not meet r.2.03AA(2) or the requirements for the grant of a Subclass 485 visa.

10. On 24 July 2020 the applicants provided the Tribunal an AFP Complete Disclosure certificate dated 29 June 2020 with the first named applicant’s known names, including that on his passport. The certificate records that the first named applicant has no disclosable court outcomes.

11. The Tribunal finds that the first named applicant has provided the required statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

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

    DECISION

13. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    ·Regulation 2.03AA(2)(a)

    R. Skaros
    Senior Member