weerasinghe nanayakkara appuhamilage (Migration)

[2018] AATA 5783

weerasinghe nanayakkara appuhamilage (Migration) [2018] AATA 5783 (29 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shehan Niraj Weerasinghe Weerasinghe Nanayakkara Appuhamilage

CASE NUMBER:  1817958

DIBP REFERENCE(S):  BCC2018/1621872

MEMBER:Jennifer Cripps Watts

DATE:29 November 2018

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)

Statement made on 29 November 2018 at 2:48pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – statement from appropriate authority on criminal history – 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 485.313; 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 6 April 2018. 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.485.313 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 13 June 2018 on the basis that the applicant did not meet r.2.03AA because they did not provide a statement from a relevant authority, in this case, an Australian Federal Police (AFP) Complete Disclosure certificate (certificate).

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 a relevant authority that provides evidence about whether or not the person has a criminal history, relevantly, an AFP Complete Disclosure certificate that is no more than 12 months old:  r.2.03AA(2)(a).

8. There does not appear to have been a request for the applicant to provide a completed Form 80.  However, the Tribunal notes that one has been provided and is on the Department file:  r.2.03AA(2)(b).

   Has the applicant provided a statement from an relevant authority?

9. The applicant lodged the visa application that is the subject of this review on 6 April 2018.

10. The delegate’s decision, a copy of which was provided to the Tribunal by the applicant when the review application was lodged, contains the following information:

    a.A receipt for a National Police Check signed and dated 31 March 2018 was received;

    b.An initial assessment of the application was undertaken by a Department case officer on 15 May 2018 and a letter sent to the applicant requesting documents in support of satisfying the character requirements within 28 days; and

    c.No further documents were submitted.

11. The Tribunal has reviewed the Department file and there is a copy of an AFP Complete Disclosure Certificate on the file, dated 4 April 2018 (which predates the date of application, 6 April 2018, by two days).  The Tribunal is satisfied it was provided to the delegate, but it appears to have been provided after a decision to refuse the visa had already been made and the applicant notified, not before.  The certificate certifies no disclosable court outcomes recorded against the applicant in this matter.  A copy of the same certificate has also been provided to the Tribunal and relates to the receipt that was provided at the time of application.

12. The Tribunal now has before it an AFP Complete Disclosure Certificate that is dated two days before the visa application was lodged and that is less than 12 months old that relates to the AFP receipt that was provided at the time of application.

13. The applicant has provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).  The Tribunal is satisfied that there is a completed Form 80 on the Department file and the applicant therefore meets r.2.03AA(2)(b).

    Conclusion

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

    DECISION

15. 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).

    Jennifer Cripps Watts
    Member