Nino Bernal (Migration)

[2024] AATA 3960

Nino Bernal (Migration) [2024] AATA 3960 (19 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lizeth Paola Nino Bernal

REPRESENTATIVE:  Miss Sonia Angela Campanaro

CASE NUMBER:  2430384

HOME AFFAIRS REFERENCE(S):          BCC2023/7000092

MEMBER:Karen McNamara

DATE:19 September 2024

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 485.216 of Schedule 2 to the Regulations.

Statement made on 19 September 2024 at 9:46am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history – Australian Federal Police National Police Certificate provided upon review – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 485.216; Schedule 4, Public Interest Criterion 4001; r 2.03

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 14 August 2024, to refuse to grant Ms Lizeth Paola Nino Bernal (the applicant) a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 December 2023. 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 (Cth) (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 decision record provided to the Tribunal by the applicant, records that on 14 August 2024, the delegate refused to grant the visa because the applicant did not satisfy cl.485.216 of Schedule 2 to the Regulations. The delegate was not satisfied that the applicant satisfied PIC 4001 as prescribed in reg 2.03AA(2) of the regulations.

4. 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).

5. 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.

6. The delegate refused to grant the visa on the basis that the applicant did not meet r.2.03AA(2)(a) because she failed to provide the appropriate police clearance certificate or other statement (however described) provided by an appropriate authority in each of the countries, where she had resided for a total of 12 months or more in the last 10 years. In this case the applicant had not provided a Police Certificate including her alias Nino Beltran, Lizeth Paola, as previously requested by the Department.

7. The applicant lodged an application for review with the Tribunal on 27 August 2024.

8. On 5 September 2024, the applicant provided to the Tribunal, a National Police Certificate issued by the Australian Federal Police on 24 August 2024 for the applicant including her alias.

9. In accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in favour of the applicant on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal to give evidence in relation to the decision under review.

10. The applicant has now provided at review a National Police Certificate issued by the Australian Federal Police on 24 August 2024, advising that there were no disclosable court outcomes recorded against all names under which the applicant is known.

11. The applicant therefore has provided a statement from an appropriate authority and therefore meets r.2.03AA(2) and as such satisfies PIC4001.

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

    DECISION

13. 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 485.216 of Schedule 2 to the Regulations.

    Karen McNamara
    Member