RATNAYAKA MUDIYANSELAGE (Migration)

[2018] AATA 2249

RATNAYAKA MUDIYANSELAGE (Migration) [2018] AATA 2249 (15 May 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mrs IRESHA SASIKALA RATNAYAKA MUDIYANSELAGE

Mr EMIL MERVIN NETHTHIKUMARA

Master DYLAN DHANIKA NETHTHIKUMARA Master THARUSHA NADIJA NETHTHIKUMARA Master ADEEPA LANKESH NETHTHIKUMARA

CASE NUMBER:  1710405

DIBP REFERENCE(S):  BCC2016/3078757

MEMBER:  Alison Mercer

DATE:  15 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 485 visa:

·regulation 2.03AA of the Regulations.

Statement made on 15 May 2018 at 1:48pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Requirement to provide a Complete Disclosure Certificate – Certificate not provided to the Department – Certificate subsequently provided to the Tribunal – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2, cls 485.216, 485.311, Schedule 4, PIC 4001, 4002

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 on 27 April 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

1. The applicants applied for the visas on 13 September 2016. 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.

1. 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 first named applicant (the applicant) to meet PIC 4001. The applicant is therefore required to satisfy the criterion in r.2.03AA(2).

1. 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.

1. The delegate refused to grant the visa on 27 April 2017 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide a Complete Disclosure certificate from the Australian Federal Police (AFP), despite being requested to do so. The delegate found that the applicant therefore did not meet r.2.03AA(2)(a), and did not consider it unreasonable for her to do so, so did not waive the requirement to meet r.2.03AA(2)(a) pursuant to r.2.03AA(3). The delegate found that the applicant therefore did not meet PIC 4001 for the purposes of cl.485.216. Further, the delegate refused to grant the second, third, fourth and fifth named applicants (the applicant’s husband and 3 sons) subclass 457 visas on the basis that they did not satisfy the secondary visa criteria in cl.457.311 to be members of the family unit of a person who held a subclass 457 visa, and there was no evidence that they met the primary visa criteria in their own right.

1. The Tribunal received a review application from the applicants on 16 May 2017. It was accompanied by a copy of the delegate’s decision.

1. On 6 March 2018, the Tribunal wrote to the applicants via their registered migration agent to request that the applicant provide a copy of his Australian Complete Disclosure certificate provided by the appropriate authority, to assist with assessment of his case.

1. On 13 April 2018, the applicants’ agent provided the Tribunal with a scanned copy of a Complete Disclosure Certificate issued to the applicant by the AFP on 18 March 2018, which indicates that there are no disclosable court outcomes recorded against the applicant’s name.

1. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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?

1. The Departmental file indicates the applicant did not respond to a request from the Department to provide an AFP check. No check had been provided at the time that the delegate made the decision to refuse to grant the applicants a visa.

1. However, the applicant has now provided to the Tribunal an AFP Full Disclosure check issued to her on 18 March 2018 indicating she has no criminal record in Australia.

1. Accordingly, the Tribunal is satisfied that the applicant has now provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

Conclusion

1. The Departmental file indicates that the applicant provided a completed approved Form 80 with the visa application, and therefore the requirement in r.2.03AA(2)(b) is met.

1. On the basis of the above findings, the Tribunal is satisfied that the applicant meets r.2.03AA(2) and the appropriate course of action is to remit the matter to the Minister to consider the remaining criteria for the visa.

1. As the second, third, fourth and fifth named applicants applied on the basis of being members of the family unit of the first named applicant, their applications will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

DECISION

1. 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).

Alison Mercer Member