Lee (Migration)

[2018] AATA 3838

Lee (Migration) [2018] AATA 3838 (2 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jeonghun Lee

CASE NUMBER:  1819317

DIBP REFERENCE(S):  BCC2018/1069146

MEMBER:Antonio Dronjic

DATE:2 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·Regulation 2.03AA (2).

Statement made on 02 August 2018 at 4:31pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Complete Disclosure National Police Certificate provided – Decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03, 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 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 6 March 2018.

2. 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 25 June 2018 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide a Complete Disclosure National Police Certificate from the Australian Federal Police (AFP) as requested.   

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.

   Has the applicant provided a statement from an appropriate authority?

8. On 23 April 2018 the applicant was requested by the Department to provide a Complete Disclosure AFP National Police clearance within 28 days. The applicant provided a Standard Disclosure certificate from the AFP but not the Complete Disclosure certificate as requested.

9. The Tribunal is satisfied that the delegate made a request for the applicant to provide a Complete Disclosure certificate from an appropriate authority, which in this case is the AFP, in a country where the applicant resides or has resided: Australia. In the circumstances, the applicant has to provide the requested statement to meet the r.2.03AA.

10. On review, the Tribunal received a copy of a National Police Certificate - Complete Disclosure dated 3 July 2018 issued by the AFP. The certificate indicates that there are no disclosable court outcomes recorded against the applicant’s name.

11. As the applicant has now provided the requested statement from the appropriate authority he therefore meets r.2.03AA(2)(a).

12. 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.

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

    DECISION

14. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·Regulation 2.03AA(2).

    Antonio Dronjic
    Member