Mucci (Migration)

[2020] AATA 2087

Mucci (Migration) [2020] AATA 2087 (27 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Leopoldo Mucci

CASE NUMBER:  2005479

DIBP REFERENCE(S):  BCC2019/6633886

MEMBER:Jennifer Cripps Watts

DATE:27 April 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 27 April 2020 at 11:00am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – character test – statement from an appropriate authority – Australian Federal Police (AFP) clearance National Police Check (AFP Check) – 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 (the delegate) 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 12 December 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 PIC 4001. The applicant is therefore required to satisfy the criterion in r.2.03AA(2).

4. Relevant in this case is that r.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 16 March 2020 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide the appropriate statement when it was requested by the Minister, described as an Australian Federal Police (AFP) clearance National Police Check (AFP Check), as required by r.2.03AA(2)(a).

6. On 18 March 2020, the applicant lodged a review application relating to the Subclass 485 visa refusal, within time, and provided the Tribunal with a copy of the delegate’s decision.

7. The applicant has now provided an AFP Check and the Tribunal was able to make a favourable decision on the evidence before it, relating to the determinative issue on the review, without the applicant attending a hearing to give evidence and present arguments:  s.360(2)(a) of the Act.

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

   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 he has a criminal history, to meet s.2.03AA(2)(a) of the Regulations.  The Tribunal has considered relevant information contained in the Department and Tribunal files, including the online visa application form, the request made by the Department on 8 February 2020 for the applicant to provide additional information, the applicant’s response, the delegate’s decision and the AFP Check provided to the Tribunal.

   Has the applicant provided a statement from an appropriate authority?

10. In the online application generated on 12 December 2019 the applicant  indicated in the answers provided that all persons included in the visa application over 16 years of age had not applied to the Australian Federal Police for a check of criminal records in the 12 months prior to the visa application.  He did, however, provide a reference number for a police check with an application date of 12 December 2018, which is outside the required 12 month period specified.  

11. It is recorded in the delegate’s decision that, on 8 February 2020, the visa application was assessed and the applicant was requested, in writing, to provide additional information, including an AFP Check.  He provided a New South Wales Police check, which was not the AFP Check as described and requested by the Minister.  The visa was refused because the applicant did not satisfy the requirements of cl.2.03AA for the purpose of meeting cl.485.216.

12. On the review, the applicant provided the Tribunal with an APF Check, dated 19 March 2020, certifying that as at 19 March 2020 there were no disclosable court outcomes in his name. 

13. For the reasons given, the applicant meets 2.03AA(2)(a) of the Regulations for the purpose of satisfying cl.485.216.

    DECISION

14. 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)

    Jennifer Cripps Watts

    
    

    Member