Lindholm (Migration)

[2020] AATA 3288

Lindholm (Migration) [2020] AATA 3288 (17 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Pauline Eva Lindholm

CASE NUMBER:  2004172

DIBP REFERENCE(S):  BCC2019/6443989

MEMBER:Kira Raif

DATE:17 June 2020

PLACE OF DECISION:  Sydney

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 June 2020 at 1:30pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – AFP Complete Disclosure certificate provided– decision under review remitted

LEGISLATION
Migration Act 1958, s 65
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 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 3 December 2019. The delegate refused to grant the visa on 2 March 2020 on the basis that the applicant did not meet r.2.03AA because the applicant failed to provide a statement from the AFP. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

3. 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.

4. 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 PIC4001. The applicant is therefore required to satisfy the criterion in r.2.03AA(2).

5. 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.

   Has the applicant provided a statement from an appropriate authority?

6. The primary decision record indicates that  het applicant was requested to provide an AFP statement but had not done so. The applicant provided to the Tribunal the police certificate issued by AFP in March 2020 showing no disclosable outcomes.

7. As the applicant has provided a statement from an appropriate authority, she therefore meets r.2.03AA(2)(a).

   Conclusion

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

   DECISION

9. 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).

   Kira Raif
   Senior Member