Mansoor (Migration)

[2019] AATA 2659

Mansoor (Migration) [2019] AATA 2659 (28 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shakil Mansoor

CASE NUMBER:  1908512

DIBP REFERENCE(S):  BCC2018/5894542

MEMBER:Bridget Cullen

DATE:28 May 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·Regulation 2.03AA(2).

Statement made on 28 May 2019 at 5:21pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – statement from an appropriate authority – National Police Certificate from the Queensland Police Service – AFP National Police Certificate Complete Disclosure – no disclosable court outcomes – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 485.261; 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). The applicant applied for the visa on 31 December 2018. The delegate refused to grant the visa on 3 April 2019.

2. 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, 485.261 of Schedule 2 of the Regulations require 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. The delegate refused to grant the visa on 3 April 2019 on the basis that the applicant did not meet r.2.03AA.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. On 31 December 2018 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.

8. On 23 February 2019, the application was assessed and the Department requested that the applicant provide his Australian Federal Police “Complete Disclosure” Certificate.  On 21 March 2019, the applicant provided the Department with a National Police Certificate from the Queensland Police Service, rather than the one requested by the Department.

9. As the Department required a Complete Disclosure Certificate issued by the Australian Federal Police, and the applicant did not provide it within the required timeframe, the Department made a decision.

10. On 13 April 2019, the Tribunal received a National Police Certificate – Complete Disclosure issued by the Australian Federal Police dated 5 April 2019.  This certificate indicated that the applicant had no disclosable court outcomes.

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

    CONCLUSION

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

    DECISION

13. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·Regulation 2.03AA(2).

    Bridget Cullen
    Member