Yang (Migration)

[2020] AATA 5920

Yang (Migration) [2020] AATA 5920 (19 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Lulu Yang

CASE NUMBER:  1911246

DIBP REFERENCE(S):  BCC2018/5805205

MEMBER:Kira Raif

DATE:19 November 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 19 November 2020 at 8:50pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – AFP National Complete Disclosure Certificate provided – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA(2)(a)

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 24 December 2018. The delegate refused to grant the visa on 29 April 2019 on the basis that the applicant did not meet r.2.03AA because she did not provide the requested Australian Federal Police (AFP) National Complete Disclosure Certificate requested by the delegate.

3. The Tribunal did not consider a hearing to be necessary as it was able to reach a favourable finding on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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.

5. 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).

6. 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.

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 primary decision record indicates that the delegate wrote to the applicant requesting her to provide evidence to satisfy the character requirement. In response, the applicant provided a Standard Disclosure National Police Certificate issued 27 December 2018, which did not meet the Department’s evidentiary requirements. A second request was sent to the applicant specifying that a AFP National Complete Disclosure Certificate was required to meet the character requirement. The applicant did not provide this within the time allowed and, as such, the delegate was not satisfied the applicant met r.2.03AA(2).

9. The applicant has now provided to the Tribunal an AFP National Complete Disclosure Certificate dated 2 October 2020 which states that there are no disclosable court outcomes with respect the applicant.

10. As the applicant has provided a statement from an appropriate authority, she therefore meets r.2.03AA(2)(a).

    DECISION

11. 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).

    Kira Raif
    Senior Member