SUN (Migration)

[2020] AATA 639

SUN (Migration) [2020] AATA 639 (11 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms XUEQI SUN

CASE NUMBER:  2001963

DIBP REFERENCE(S):  BCC2019/4705843

MEMBER:R. Skaros

DATE:11 March 2020

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 11 March 2020 at 6:49pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – criminal history statement – AFP complete disclosure certificate provided to tribunal – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA(2)(a)

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 19 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 visa on 16 January 2020 on the basis that the applicant did not meet r.2.03AA because the 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 7 December 2019 the applicant was requested by the Department to provide an Australian Federal Police (AFP) Complete Disclosure certificate.  The applicant had not provided 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 24 February 2020, a copy of an AFP Complete Disclosure certificate dated 30 January 2020 was given to the Tribunal. This certificate records that there are no disclosable court outcomes for the applicant.

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

    DECISION

11. 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