Soundarajan (Migration)

[2019] AATA 3731

Soundarajan (Migration) [2019] AATA 3731 (30 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shivaani Soundarajan

CASE NUMBER:  1918042

DIBP REFERENCE(S):  BCC2019/1436338

MEMBER:Catherine Carney-Orsborn

DATE:30 July 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)

Statement made on 30 July 2019 at 4:59pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Complete Disclosure Federal Police certificate provided – no disclosable court outcomes recorded – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(2), Schedule 2, cl 485.216, PIC 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 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 21 March 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, 485.216 of Schedule 2 of the Regulations requires the applicant (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 3 July 2019 on the basis that the applicant did not meet r.2.03AA because she did not provide a Federal Police clearance to the Department and therefore did not satisfy PIC 4001 as r.2.03AA was not satisfied.

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 the present case is whether the applicant satisfies Public Interest Criteria 4001, regulation r.2.03AA as required by cl.485.216.

8. Evidence relating to police checks

9. On 21 March 2019 the applicant lodged an online application and responded yes to the question of whether she had applied for a police check in the last twelve months.  She provided a lodgement number to show that the application had been made.

10. The delegate wrote to the applicant requesting Complete Disclosure Certificates from the Federal Police.  The department allowed 28 days to respond.

11. On 6 June 2019 the applicant provided to the department a Standard Disclosure police clearance from the Australian Federal Police. This police check was not a complete Disclosure Certificate from the Federal Police.

12. On 3 July 2019 the delegate made a decision to refuse the visa as r.2.03AA (2) was not satisfied.

13. The applicant provided to the Tribunal a copy of a Complete Disclosure Federal Police certificate dated 8 July 2019 to the Tribunal. The certificate certified that there is no disclosable court outcomes recorded against the applicant’s name.

14. On the evidence before it the Tribunal is satisfied that the applicant satisfies r.2.03AA(2).

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

    DECISION

16. 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).

    Catherine Carney-Orsborn
    Member