Salvador (Migration)

[2020] AATA 634

Salvador (Migration) [2020] AATA 634 (11 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Retchie Grant Ano Salvador
Mrs Esther Jane Fugnay Salvador
Miss Zuriel Fugnay Salvador

CASE NUMBER:  2001281

DIBP REFERENCE(S):  BCC2019/4743386

MEMBER:R. Skaros

DATE:11 March 2020

PLACE OF DECISION:  Sydney

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(2)(a).

Statement made on 11 March 2020 at 6:04pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history statement – NSW police certificate provided to department – AFP complete disclosure certificates provided to tribunal – members of family unit – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 485.216, Schedule 4, criterion 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 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 21 September 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 visas on 17 January 2020 on the basis that the first named applicant did not meet r.2.03AA because the first named applicant did not provide an AFP Complete Disclosure certificate when requested by the delegate.

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 11 December 2019 the applicant was requested by the Department to provide an AFP Complete Disclosure certificate, however the applicant responded on 12 December 2019 by giving a copy of a NSW State police certificate.

9. On 2 March 2020, the applicant provided the Tribunal with a copy of his and the secondary applicant’s AFP Complete Disclosure certificates dated 17 and 15 February 2020, respectively. These certificates record that there are no disclosable court outcomes for the applicants.

10. The Tribunal finds that the first named applicant has now provided the requested statement from the appropriate authority about whether or not he has a criminal history and therefore meets r.2.03AA(2)(a).

11. In relation to the second and the third named applicants, the Tribunal notes that the Department refused their applications on the basis that they were not members of the family unit of a person that holds a relevant visa.  The Tribunal notes that on remittal of this matter, and based on the outcome of the first named applicant’s application for the visa, the Department will reconsider the second and third named applicants’ eligibility for the visa.

12. On the basis of the above findings, the applicant meets r.2.03AA(2)(a).

    DECISION

13. 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(2)(a).

    R. Skaros
    Senior Member