Ng (Migration)

[2018] AATA 5746

Ng (Migration) [2018] AATA 5746 (7 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Clarence Kia Ern Ng

CASE NUMBER:  1818901

HOME AFFAIRS REFERENCE:                BCC2018/2234437

MEMBER:Lilly Mojsin

DATE:7 November 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:

·cl.485.213 of Schedule 2 to the Regulations

Statement made on 07 November 2018 at 5:23pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police check – “Standard Disclosure” Police Certificate – Complete Disclosure National Police Certificate – terms of legislative requirement – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.213

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 Home Affairs on 25 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 23 May 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations because the applicant had not provided a Complete Disclosure Australian Federal Police.

4. The Tribunal did not invite the review applicant to attend a hearing as it decided it should make a favourable decision on the available evidence (s.360(2)).

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Clause 485.213 requires that when the visa application was made, it was accompanied by evidence that the applicant, and each person included in the application who is at least 16, had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.

6. The applicant had indicated on the visa application form that he had applied for an AFP check of criminal records in the 12 months prior to his application.

7. The applicant then provided a “Standard Disclosure” Police Certificate dated 17 May 2018 to the department. Therefore the applicant made the application for the check in the 12 months prior to the Subclass 485 visa application being made 23 May 2018.

8. The delegate found that the applicant did not satisfy the requirements of Regulation 485.213 as the applicant did not apply for the appropriate Australian Federal Police clearance during the 12 months immediately before the day they lodged their visa application.

9. On review, the applicant has provided a Complete Disclosure National Police Certificate issued by the AFP dated 29 June 2018 indicating that there are no disclosable court outcomes recorded against the applicant’s name.

10. The Tribunal notes that the department required that the applicant provide the Complete Disclosure Australian Federal Police and not the Standard Disclosure check. However, there is nothing in the terms of cl.485.213 which specifies that the AFP check is the “complete disclosure” check instead of the “standard disclosure” check. As the applicant had made an application for a check of criminal records in the 12 months prior to the visa application being made, the Tribunal finds that he satisfies cl.485.213.

11. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

12. 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:

    ·cl.485.213 of Schedule 2 to the Regulations.

    Lilly Mojsin
    Member