Wheeler (Migration)

[2020] AATA 245

Wheeler (Migration) [2020] AATA 245 (7 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Liam James Wheeler

CASE NUMBER:  2000887

DIBP REFERENCE(S):  BCC2019/4327045

MEMBER:R. Skaros

DATE:7 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 07 February 2020 at 5:23pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –criminal history statement – Australian Federal Police complete disclosure certificate provided to tribunal – disclosable court outcomes not in issue before tribunal – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 2, cl 485.216, Schedule 4, criterion 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 30 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 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 30 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. On 31 October 2019, the applicant was requested by the Department to provide an Australian Federal Police (AFP) clearance National Police Check, however the applicant responded on 28 November 2019 by giving a copy of an email from the Australian Federal Police, stating that the AFP Police Check has been completed and will be dispatched.  The delegate proceeded to refuse the application on the basis that the applicant did not provide the requested police clearance certificate.

9. On review, the applicant provided a copy of his AFP Complete Disclosure certificate issued on 25 November 2019.  This certificate records that there are disclosable court outcomes for the applicant, namely assault occasioning actual bodily harm resulting in a 12 month good behaviour bond; possession of a prohibited drug, dealing with the proceeds of crime, supplying of a prohibited drug resulting in the imposition of a 2 year community corrections order to perform 100 hours of community service work. 

10. The Tribunal notes that the issue before it relates to whether or not the applicant has provided the requested statement from the relevant authority regarding his criminal history and not whether the applicant meets the character requirements.

11. As the applicant has now provided the requested statement from the appropriate authority about whether or not he has a criminal history, the requirement in r.2.03AA(2)(a) is met.

12. The appropriate course of action in the circumstances is to remit the matter to the Department for further consideration of the remaining criteria for the grant of the visa.

    DECISION

13. 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