Lui (Migration)

[2020] AATA 1462

Lui (Migration) [2020] AATA 1462 (23 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hoi Ting Lui

CASE NUMBER:  1933717

DIBP REFERENCE(S):  BCC2019/4143790

MEMBER:Jennifer Cripps Watts

DATE:23 April 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 23 April 2020 at 5:49pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history statement – Australian police check provided to tribunal – no disclosable court outcomes – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65, 360(2)(a)

Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 2, cl 485.216, Schedule 4, criterion 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 (the delegate) 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 21 August 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 14 November 2019 on the basis that the applicant did not meet r.2.03AA because she did not provide the appropriate statement when it was requested by the Minister, described as an Australian Federal Police (AFP) clearance National Police Check (AFP Check).

6. On 27 November 2019, the applicant lodged the review application relating to her Subclass 485 visa refusal, within time, and provided the Tribunal with a copy of the delegate’s decision.

7. The applicant has now provided an AFP Check and the Tribunal was able to make a favourable decision on the evidence before it, relating to the determinative issue on the review, without inviting the applicant to a hearing to give evidence and present arguments:  s.360(2)(a) of the Act.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 applicant has a criminal history to meet s.2.03AA(2)(a) of the Regulations.  The Tribunal has considered relevant information contained in the Department and Tribunal files, including the online visa application form, the request made by the Department on 7 October 2019 for the applicant to provide additional information, the migration agent’s written submissions and the AFP Check provided to the Tribunal.

   Has the applicant provided a statement from an appropriate authority?

10. The visa application was made on 21 August 2019.  In the online application, the applicant indicated in her answers that she had applied to the Australian Federal Police for a check of criminal records, together with a reference number and date of application, 2 May 2019. 

11. It is recorded in the delegate’s decision that, on 7 October 2020, the visa application was assessed and the applicant was requested, in writing, to provide additional information, including an AFP Check.  The next day, the applicant provided an AFP Partial Disclosure statement dated 19 May 2029, but not the AFP Check that had been requested and as it had been described by the Minister.  The visa was refused because the delegate found that the applicant did not meet 2.03AA of the Regulations.

12. On the review, the applicant provided the Tribunal with an AFP Check dated 18 November 2019 certifying no disclosable court outcomes.

13. For these reasons, the applicant meets 2.03AA(2)(a) of the Regulations for the purpose of satisfying cl.485.216.

    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)

    Jennifer Cripps Watts
    Member