Peng (Migration)

[2019] AATA 6245

Peng (Migration) [2019] AATA 6245 (28 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shiyun Peng

CASE NUMBER:  1920959

DIBP REFERENCE(S):  BCC2019/2396578

MEMBER:R. Skaros

DATE:28 October 2019

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 28 October 2019 at 11:27am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – evidence about criminal history – Australian Federal Police Complete Disclosure Certificate - Chinese police clearance certificate provided upon review – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.216; Schedule 4 Public Interest Criterion (PIC) 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 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 1 May 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. 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.

5. The delegate refused to grant the visa on 26 July 2019 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide police clearance certificates from the relevant authorities in each country that she lived in for a total period of 12 months.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. On 25 June 2019, the applicant was requested by the Department to provide police certificates from each country where the applicant lived for a total of 12 months or more in the last 10 years.  The applicant had not provided all the requested information within the period allowed by the delegate. The delegate proceeded to refuse the application on the basis that the applicant did not provide the requested police clearance certificate.

9. On review, the applicant provided a copy of her Chinese police clearance certificate, issued on 28 July 2019, by the Tianjin Notary Public Office, indicating that there are no criminal records associated with the applicant.

10. The applicant also provided to the Tribunal a copy of her AFP Complete Disclosure certificate issued on 7 August 2019, showing no disclosable outcomes.

11. The Tribunal finds that 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)(a).

    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:

    ·Regulation 2.03AA(2)(a).

    R. Skaros
    Senior Member