Lu (Migration)

[2020] AATA 4119

Lu (Migration) [2020] AATA 4119 (5 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xiao Lu

CASE NUMBER:  2005096

DIBP REFERENCE(S):  BCC2019/5076128

MEMBER:R.Skaros

DATE:5 August 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)(a).

Statement made on 05 August 2020 at 6:38pm

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 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 10 October 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 visa on 28 February 2020 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide an Australian Federal Police (AFP) Complete Disclosure certificate as requested by 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 applicant 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. In the visa application lodged on 10 October 2019 the applicant stated that they had applied for an AFP check.

10. On 19 December 2019 the Department requested the applicant to provide an AFP Complete Disclosure certificate. On 3 January 2020 the applicant uploaded a Standard Disclosure AFP check to the Departmental systems. On 29 January 2020 the applicant was again asked to provide an AFP Complete Disclosure certificate. On 12 February 2020 the applicant again uploaded the Standard Disclosure certificate. This was considered insufficient to establish that the applicant satisfied the relevant requirements and the delegate concluded the applicant did not satisfy r.2.03AA(2).

11. On 24 March 2020 the applicant provided the Tribunal a copy of an AFP Complete Disclosure certificate dated 17 March 2020. The certificate records that the applicant has no disclosable court outcomes.

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

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

    DECISION

14. 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).

    R. Skaros
    Senior Member