Trinh (Migration)

[2020] AATA 536

Trinh (Migration) [2020] AATA 536 (18 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Khon Trinh

CASE NUMBER:  1934768

DIBP REFERENCE(S):  BCC2019/4299318

MEMBER:R. Skaros

DATE:18 February 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 18 February 2020 at 2:25pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – statement from an appropriate authority  – AFP Standard Disclosure certificate – AFP Complete Disclosure certificate – no disclosable court outcomes – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 485.216; Schedule 4, 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 28 August 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 PIC4001. 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 6 December 2019 on the basis that the applicant did not meet r.2.03AA because the applicant failed to 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. The applicant gave the delegate a copy of AFP Standard Disclosure certificate. The delegate requested an AFP Complete Disclosure certificate however the applicant again provided an AFP Standard Disclosure certificate.

9. On 19 December 2019, the applicant gave the Tribunal a copy of an AFP Complete Disclosure certificate dated 10 December 2019. This certificate recorded that there were no disclosable court outcomes for the applicant.

10. The Tribunal therefore finds that the applicant has provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

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

    DECISION

12. 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