Lee (Migration)

[2019] AATA 1211

Lee (Migration) [2019] AATA 1211 (16 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Wendy Li Ting Lee

CASE NUMBER:  1909514

HOME AFFAIRS REFERENCE(S):           BCC2018/5209582

MEMBER:Alison Mercer

DATE:16 May 2019

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)(a) of the Regulations.

Statement made on 16 May 2019 at 4:02pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police Complete Disclosure certificate provided – hearing not required – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 485.216, r 2.03AA(2)(a), 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 16 April 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 22 November 2018. 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. 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).

3. 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.

4. The delegate refused to grant the visa on 16 April 2019 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide a Complete Disclosure certificate from the Australian Federal Police (AFP), despite being requested to do so by the delegate. (The delegate noted that the Standard AFP certificate provided by the applicant did not meet the requirements of r.2.03AA). 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.

5. The Tribunal received a review application from the applicant on 16 April 2019.  It was accompanied by a copy of the delegate’s decision. On 30 April 2019, the applicant provided to the Tribunal a Complete Disclosure certificate issued to her by the AFP on 17 April 2019, indicating that there are no disclosable outcomes recorded against her name. 

6. 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

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.

   Has the applicant provided a statement from an appropriate authority?

8. The Departmental decision indicates that the applicant did respond to a request from the Department to provide a AFP Complete Disclosure check, but rather provided a Standard Disclosure certificate. No Complete Disclosure AFP check had been provided at the time that the delegate made the decision to refuse to grant the applicant a visa.

9. However, the applicant has now provided to the Tribunal an AFP Full Disclosure check issued to her on 17 April 2019 indicating she has no criminal record in Australia.

10. 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).

    DECISION

11. 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)(a).

    Alison Mercer
    Member