Teo (Migration)

[2019] AATA 3493

Teo (Migration) [2019] AATA 3493 (20 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ru Yi Teo

CASE NUMBER:  1914015

DIBP REFERENCE(S):  BCC2019/560648

MEMBER:Antonio Dronjic

DATE:20 June 2019

PLACE OF DECISION:  Melbourne

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 20 June 2019 at 10:19am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – criminal history check – evidence provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 485.216, r 2.03AA

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 20 February 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 20 May 2019 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide a Complete Disclosure National Police Certificate from the Australian Federal Police (AFP) as requested.

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 12 April 2019 the applicant was requested by the Department to provide a Complete Disclosure AFP National Police clearance within 28 days. The applicant provided a Standard Disclosure certificate but not the Complete Disclosure certificate as requested.

9. The Tribunal is satisfied that the delegate made a request for the applicant to provide a Complete Disclosure certificate from an appropriate authority, which in this case is the AFP, in a country where the applicant resides or has resided: Australia. In the circumstances, the applicant has to provide the requested statement to meet the r.2.03AA.

10. On review, the Tribunal received a copy of a National Police Certificate - Complete Disclosure dated 15 April 2019 issued by the AFP. The certificate indicates that there are no disclosable court outcomes recorded against the applicant’s name.

11. As the applicant has now provided the requested statement from the appropriate authority she therefore meets r.2.03AA(2)(a).

12. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

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

    DECISION

14. 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).

    Antonio Dronjic
    Member