Winner (Migration)

[2020] AATA 2691

Winner (Migration) [2020] AATA 2691 (1 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Wilson Winner
Ms Lia Angelina Manullang
Master William Aiden

CASE NUMBER:  1728722

DIBP REFERENCE(S):  BCC2017/2486725

MEMBER:Kira Raif

DATE:1 July 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·Regulation 2.03AA(2).

Statement made on 01 July 2020 at 10:10am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history statement – AFP certificate not provided to department – full disclosure certificate provided to tribunal – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA(2), 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 applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 13 July 2017. The delegate refused to grant the visas on 2 November 2017 on the basis that the first named applicant (‘the applicant’) did not meet r.2.03AA because he failed to provide his Australian penal certificate. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

3. 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.

4. 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).

5. 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.

6. 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?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was requested to provide his Australian police clearance certificate but had not done so. As a result, the delegate was not satisfied the applicant met r. 2.013AA.

8. The applicant provided additional evidence to the Tribunal. This includes the Australian police certificates for each of the applicants. In relation to the second named applicant, the certificate indicates there are no disclosable court outcomes. In relation to the first named applicant, his police certificate shows a conviction for an offence of ‘no authority to drive – suspended’ resulting in a $400 fine.

9. It is not for this Tribunal to consider whether the applicant meets the character requirements. However, r. 2.03AA is only concerned with the provision of the relevant statement from an appropriate authority. In this case, the full disclosure AFP Certificate has been provided in relation to each visa applicant. In the Tribunal’s view, that is sufficient to meet the requirements of r. 2.03AA.

10. The applicant has provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

    Conclusion

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

    DECISION

12. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    ·Regulation 2.03AA(2).

    Kira Raif
    Senior Member