WU (Migration)

[2019] AATA 3314

WU (Migration) [2019] AATA 3314 (11 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Zihan WU

CASE NUMBER:  1916009

DIBP REFERENCE(S):  BCC2019/1143036

MEMBER:Jennifer Cripps Watts

DATE:11 July 2019

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 11 July 2019 at 12:21pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – character test – statement from an appropriate authority – AFP Check received – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 485.216; 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 (the delegate) 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 7 March 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, however described, 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 6 June 2019 on the basis that the applicant did not meet r.2.03AA because, on 3 May 2019, relevant to the review, the delegate requested that the applicant provide evidence to satisfy the PIC 4001 character requirement within 28 days and the applicant did not provide the statement as it was described, an Australian Federal Police clearance National Police Check (AFP Check)

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.

8. When assessing the visa application, on 3 May 2019, the delegate requested, among other things, that the applicant provide an AFP Check within 28 days. 

9. The visa application was made on 7 March 2019 and the visa was refused on 6 June 2019.  On 19 June 2019, the applicant applied for review and provided the Tribunal with a copy of the delegate’s decision.  A copy of the AFP Check in the name of the applicant, dated 3 March 2019, was also provided to the Tribunal.

   Has the applicant provided a statement from an appropriate authority?

10. The Tribunal has reviewed both the Department and Tribunal files and is satisfied that the applicant has now provided documentary evidence that she had applied for and been issued with an AFP Check, dated 5 March 2019.

11. 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).

    Jennifer Cripps Watts
    Member