Wijenayaka (Migration)

[2020] AATA 244

Wijenayaka (Migration) [2020] AATA 244 (7 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dasili Liyanage Thirandu Nivantha Wijenayaka

CASE NUMBER:  1929739

DIBP REFERENCE(S):  BCC2019/3710325

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 6:31pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –criminal history statement – Australian Federal Police complete disclosure certificate and police clearance certificate from home country provided to 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 26 July 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 18 October 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 delegate requested the applicant to provide an AFP Complete Disclosure certificate on 5 September 2019. On 20 September 2019 the applicant responded by providing the delegate with an AFP Standard Disclosure certificate.

9. On 28 November 2019, a copy of an AFP Complete Disclosure certificate dated 22 November 2019 was given to the Tribunal. This certificate records that there are no disclosable court outcomes for the applicant.  

10. On 6 December 2019, the applicant also provided the Tribunal with a Police Clearance Certificate issued by the Police Headquarters, Colombo Sri Lanka on 2 December 2019. This certificate records that the applicant has not come to the adverse notice of the Sri Lanka Police during the period from 30 October 2007 to 1 November 2017.

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

    Conclusion

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

    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