Lyu (Migration)

[2018] AATA 2001

Lyu (Migration) [2018] AATA 2001 (25 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Shuhui Lyu

CASE NUMBER:  1813918

DIBP REFERENCE(S):  BCC2018/1004231

MEMBER:Alison Mercer

DATE:25 May 2018

PLACE OF DECISION:  Melbourne

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) of the Regulations.

Statement made on 25 May 2018 at 11:53am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary) – Criminal history – Complete Disclosure Certificate supplied – Completed Form 80 – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 360, 501
Migration Regulations 1994, 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 on 30 April 2018 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 2 March 2018. Visa Class VC contains subclass 485. (For visa applications made before 1 July 2013, there is also a subclass 487; however, that subclass is not relevant to the present matter.) The criteria for the grant of a subclass 485 visa are set out in Part 485 of 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 because the applicant did not satisfy cl.485.216 of Schedule 2 to the Regulations. The delegate noted that cl.485.216(1) required that, amongst other things, the applicant satisfied Public Interest Criterion 4001 (PIC 4001). This in turn required that the applicant satisfied the ‘character test’ set out in s.501 of the Act. The applicant had to provide an Australian Federal Police (AFP) clearance to satisfy the character requirements. The delegate found that although the applicant stated that she had applied for an AFP clearance before making her visa application, she did not provide this document within the time she was requested to do so.

6. The Tribunal received a review application from the applicant on 14 May 2018.  It was accompanied by a copy of the delegate’s decision.

7. On 17 May 2018, the applicant provided the Tribunal with:

   ·a scanned copy of a Complete Disclosure Certificate issued to the applicant in the name Shuhui LYU by the AFP on 8 May 2018, which indicates that there are no disclosable court outcomes recorded against the applicant’s name;

   ·a scanned copy of a Complete Disclosure Certificate issued to the applicant in the name ‘Shuhui LYU wo has advised that they are or have previously been known as Shuang LYU’ by the AFP on 2 March 2018, which indicates that there are no disclosable court outcomes recorded against the applicant’s name;

   ·Chinese notarial certificate dated 27 July 2015 (with certified English translation) certifying that Shuhui LYU previously used the name Shuang LYU, issued by the Chengdu Notary Public Office;

   ·form 80 signed and completed by the applicant on 28 February 2018; and

   ·statement by the applicant that she was born as Shuang LYU but changed her name to Shuhui LYU, and that her original AFP clearance was issued in her previous name on 2 March 2018, which she corrected by applying for another in her current name, which was issued to her on 8 May 2018.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. 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 section 360(2)(a) of the Act.

   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 person has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

10. The Departmental file indicates that although the applicant stated in her online visa application form that she had applied for an AFP check before making the visa application on 2 March 2016, she did not respond to a request from the Department to provide the AFP check. No check had been provided at the time that the delegate made the decision to refuse to grant the applicant a visa.

11. However, the applicant has now provided to the Tribunal 2  AFP Full Disclosure checks issued to her on 2 March 2018 and 8 May 2018 indicating she has no criminal record in Australia. The Tribunal notes that the applicant has provided documentary evidence that she was previously known as Shuang LYU but is now known as Shuhui LYU, and is satisfied from the evidence provided that these names relate to the same person (the applicant) as the appropriate documentation has been provided to support her explanation and her date of birth has remained consistent throughout all her documentation.

12. Accordingly, the Tribunal is satisfied that the applicant has now provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

13. Moreover, the Departmental file indicates that the applicant provided her completed Form 80 dated 28 February 2018 with her online visa application. Accordingly, the Tribunal finds that the applicant meets the requirement in r.2.03AA(2)(b).

14. On the basis of the above findings, the Tribunal is satisfied that the applicant meets r.2.03AA(2).

    DECISION

15. 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).

    Alison Mercer
    Member