Wang (Migration)

[2023] AATA 1377

Wang (Migration) [2023] AATA 1377 (10 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Haihuan Wang

REPRESENTATIVE:  Mr Feng Zhou (MARN: 0428757)

CASE NUMBER:  2305371

HOME AFFAIRS REFERENCE(S):          BCC2022/5506562

MEMBER:Mary Sheargold

DATE:10 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl 485.213 of Schedule 2 to the Regulations

Statement made on 10 May 2023 at 10:40am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – evidence of criminal history – national police certificate provided to tribunal – no disclosable court outcomes – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 485.213

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 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 21 December 2022. The delegate refused to grant the visa on 14 April 2023.

2. The delegate made the decision on the basis that evidence of criminal history was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. On 17 April 2023, the Tribunal received a copy of his National Police Certificate – Immigration/Citizenship Name Check Only dated 20 February 2023.  The Tribunal notes that the applicant’s application was accompanied by evidence that he had applied for an Australian Federal Police check at the time he applied for the visa in December 2022, but notes it appears he applied for a police check for the purposes of overseas employment.  That police check obtained in December 2022 shows no disclosable court outcomes for the applicant.

4. The applicant demonstrated a good faith intention to comply with cl.485.213 of Schedule 2 to the Regulations at the time he applied for his Subclass 485 visa by having accompanied his application with evidence that he had applied for an Australian Federal Police check prior to applying for the vis, and he has taken additional steps at the Department’s request to provide a further Australian Federal Police check as soon as he was aware this was an issue.  In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   DECISION

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

   ·cl 485.213 of Schedule 2 to the Regulations

   Mary Sheargold
   Member