Ly (Migration)

[2019] AATA 3635

Ly (Migration) [2019] AATA 3635 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Quang Vinh Ly

CASE NUMBER:  1912896

DIBP REFERENCE(S):  BCC2019/1010902

MEMBER:Bridget Cullen

DATE:5 July 2019

PLACE OF DECISION:  Brisbane

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 July 2019 at 3:39pm

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

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA(1), Schedule 2, s 485.216, Public Interest Criterion (PIC) 4001 or 4002

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 28 February 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 Public Interest Criterion (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.

5. The delegate refused to grant the visa on 23 May 2019 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide the correct police certificate as requested by the Department.

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 28 February 2019, the applicant lodged an online application and responded yes to the question of whether he had applied for a police check in the last twelve months.

9. On 15 April 2019, the application was assessed and the Department requested the applicant provide his Australian Federal Police “Complete Disclosure” Certificate. On the same day, the applicant provided a Police Certificate issued by the State of Queensland, not the Australian Federal Police Certificate requested by the Department.

10. As the Department required a Complete Disclosure Certificate required by the Australian Federal Police, and the applicant did not provide it within the required timeframe, the Department refused the visa.

11. On 23 May 2019, with the applicant’s applicant for review, he provided a National Police Certificate – Complete Disclosure issued by the Australian Federal Police, dated 17 May 2019. This certificate indicated that the applicant had no disclosable court outcomes.

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

    DECISION

13. 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)

    Bridget Cullen
    Member