Usman (Migration)

[2019] AATA 5093

Usman (Migration) [2019] AATA 5093 (5 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Usman

CASE NUMBER:  1918696

HOME AFFAIRS REFERENCE(S):           BCC2019/2414969

MEMBER:Roslyn Smidt

DATE:5 August 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

Statement made on 05 August 2019 at 3:29pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Character Test – providing evidence about criminal history – Australian Federal Police Complete Disclosure National Police Certificate – decision under review remitted 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.216; Schedule 4 Public Interest Criterion (PIC) 4001; r 2.03

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 Home Affairs on 10 July 2019 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 7 May 2019. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not meet cl.485.216 of Schedule 2 to the Regulations because he did not provide information or the documents prescribed in r.2.03AA. Regulation 2.03AA applies in this case because the applicant is required to satisfy PIC 4001, which is one of the public interest criteria in cl.485.216(1).

4. In reaching its decision the Tribunal did not consider a hearing necessary, as it was able to find in favour of the applicant on the basis of the material before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant meets Regulation 2.03AA

6. One of the criteria for the grant of a Subclass 485 visa is cl.485.216 which requires that the applicant meets Public Interest Criteria including PIC 4001. Where a person is required to satisfy PIC 4001 for the grant of a visa, additional criteria prescribed under r.2.03AA that must be met.

7. Regulation 2.03AA(1) states that, in addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or PIC 4002 for the grant of a visa, the criterion in sub-regulation (2) is prescribed.

8. Regulation 2.03AA(2) provides that, if the Minister has requested the following documents or information, the person has provided the documents or information:

   (a) a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;(b) a completed approved form 80.

9. The applicant provided the Department a Partial Disclosure Australian Federal Police certificates to support his application. The Department wrote to the applicant requesting evidence of a “Complete Disclosure Australian Federal Police clearance” but it was not provided before the decision was made.

10. On 23 July 2019 the applicant provided to the Tribunal a Complete Disclosure National Police Certificate dated 8 May 2019. The certificate records that there are no disclosable court outcomes recorded against the applicant at that date.

11. As the applicant has complied with the request to provide an AFP certificate, the Tribunal finds he satisfies the criterion in r.2.03AA(2)(a).

12. While the delegate found that the applicant did not satisfy cl.485.216, this finding was made on the basis that the applicant did not provide an AFP Complete Disclosure National Police Certificates and therefore found not to meet r.2.03AA.

13. As the Complete Disclosure National Police Certificates issued by the Australian Federal Police have been provided on review, the delegate is now able to assess whether the applicant meets PIC 4001 and cl.485.216.

    DECISION

14. The Tribunal remits the matter for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·Regulation 2.03AA

    Roslyn Smidt

    
    

    Member