Ye (Migration)

[2021] AATA 5382

Ye (Migration) [2021] AATA 5382 (22 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Zhiqiu Ye

CASE NUMBER:  2116274

HOME AFFAIRS REFERENCE(S):          BCC2020/2158084

MEMBER:Amanda Mendes Da Costa

DATE:22 November 2021

PLACE OF DECISION:  Melbourne

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:

·cl 485.216 of Schedule 2 to the Regulations.

Statement made on 22 November 2021 at 3.33pm

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

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), 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 Home Affairs on 28 October 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 25 August 2020. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.216 of Schedule 2 to the Regulations because she was not satisfied that the applicant met the requirements of Public Interest Criteria (PIC) 4001. In assessing whether the applicant met the requirements of PIC 4001, the delegate was not satisfied that the applicant had provided the Department with an AFP Complete Disclosure Certificate regarding any criminal offending by the applicant.

4. In her decision, the delegate noted that the applicant had only provided a Standard Disclosure Certificate which was not the Complete Disclosure Certificate required by the Department.  

5. On the basis of the material in both the Department’s and Tribunal’s files, and in accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour.  It was therefore unnecessary for the applicant to appear before it at a hearing to give oral evidence in relation to the decision under review.

6. The applicant was represented in relation to the review by her registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirements of cl.485.216.

9. The Tribunal notes that the applicant has provided it with a Complete Disclosure Certificate dated 29 October 2021 which shows no disclosable court outcomes recorded against the applicant.

10. Accordingly, the Tribunal finds that the applicant satisfies cl.485.216.

11. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

12. 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:

    ·cl 485.216 of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member