Matta Carreno (Migration)

[2020] AATA 5741

Matta Carreno (Migration) [2020] AATA 5741 (19 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Diego Andres Matta Carreno

CASE NUMBER:  1836658

DIBP REFERENCE(S):  BCC2018/3226769

MEMBER:Kira Raif

DATE:19 November 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 19 November 2020 at 6:20pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – character test – statement from an appropriate authority – Australian Federal Police (AFP) National Complete Disclosure Check – 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 485.216; 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 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 27 August 2018. The delegate refused to grant the visa on 22 November 2018 on the basis that the applicant did not meet r.2.03AA because he did not provide the Australian Federal Police (AFP) National Complete Disclosure Check requested by the Department.

3. A hearing was not necessary in this case as the Tribunal was able to make a favourable assessment on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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.

5. 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 PIC4001. The applicant is therefore required to satisfy the criterion in r.2.03AA(2).

6. 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.

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. The primary decision record indicates that that the delegate requested that the applicant provide an AFP National Complete Disclosure Certificate. However, he provided AFP National Police Certificate Standard Disclosure which is not the ‘complete disclosure’ Australian Federal Police clearance requested by the Department. Accordingly, the delegate was not satisfied the applicant met the requirements of r.2.03AA (2) or cl.485.216 for the grant of the visa.

9. The applicant has now provided to the Tribunal an AFP National Complete Disclosure Certificate dated 27 September 2020. This states that there are no disclosable court outcomes against the applicant.

10. As the applicant has provided a statement from an appropriate authority, he therefore meets r.2.03AA(2)(a).

    DECISION

11. 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)

    Kira Raif
    Senior Member