Madziyire (Migration)

[2018] AATA 3830

Madziyire (Migration) [2018] AATA 3830 (2 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Tarisai Patience Madziyire

CASE NUMBER:  1817039

DIBP REFERENCE(S):  BCC2018/871649

MEMBER:Wan Shum

DATE:2 August 2018

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

Statement made on 02 August 2018 at 10:54pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Complete Disclosure National Police Certificate provided – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 2.03, 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 on 1 June 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 20 February 2018. 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).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criterion in r.2.03AA. The delegate found that the applicant did not meet cl.485.216 of Schedule 2 to the Regulations because the applicant did not provide the information or the documents prescribed in r.2.03AA. Regulation 2.03AA applies in this case because the applicant is required to satisfy PIC 4001, which is one of the public interest criteria in cl.485.216(1).

4. The applicant has sought review of that decision and provided a Complete Disclosure certificate issued by the Australian Federal Police.

5. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets r.2.03AA.

7. One of the criteria for the grant of a Subclass 485 visa is cl.485.216 which requires that the applicant meets Public Interest Criteria including PIC 4001. Where a person is required to satisfy PIC 4001 for the grant of a visa, there are additional criteria prescribed under r.2.03AA that must be met for the grant of visa. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s criminal history. The additional criterion in r.2.03AA applies to all current applications.

8. Regulation 2.03AA(1) states that in addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or PIC 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

9. Regulation 2.03AA(2) provides that if the Minister has requested the following documents or information, the person has provided the documents or information:

   (a)  a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

   (b)  a completed approved form 80.

10. As part of her visa application, the applicant indicated that she had applied for to the Australian Federal Police for a check of criminal records. However, the “Complete Disclosure Australian Federal Police clearance” that was provided was issued on 22 March 2016, more than 12 months before the application was made. The Department wrote to the applicant requesting evidence of a more recent “Complete Disclosure Australian Federal Police clearance” but it was not provided before the decision was made.

11. On review, the applicant has provided to the Tribunal a Complete Disclosure National Police Certificate dated 22 March 2018 indicating that she has no disclosable court outcomes recorded against her name.

12. As the applicant has complied with the request to provide an AFP certificate, the Tribunal finds that the applicant satisfies the criterion in r.2.03AA(2)(a).

13. While the delegate found that the applicant did not satisfy cl.485.216, this finding was made on the basis that the applicant did not provide a recent AFP Complete Disclosure National Police Certificate and was thus found not to meet r.2.03AA.

14. As a more recent Complete Disclosure National Police Certificate issued by the Australian Federal Police has been provided, the delegate is now able to assess whether the applicant meets PIC 4001 and cl.485.216.

15. The Tribunal remits the matter with a direction that the applicant satisfies r.2.03AA. The Tribunal remits the application to the Minister to undertake consideration of whether the applicant meets cl.485.216 and the remaining criteria for the grant of a Subclass 485 visa.

    DECISION

16. 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.

    Wan Shum
    Member