YOO (Migration)

[2018] AATA 5292

YOO (Migration) [2018] AATA 5292 (22 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr KEUN HYUNG YOO

CASE NUMBER:  1712785

DIBP REFERENCE(S):  BCC2017/875105

MEMBER:Jennifer Cripps Watts

DATE:22 November 2018

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)

Statement made on 22 November 2018 at 4:28pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – statement about criminal history from an appropriate authority – AFP Complete Disclosure certificate provided to the Tribunal – Form 80 not requested – 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 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 6 March 2017. 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 from an appropriate 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 14 June 2017 on the basis that the applicant did not meet r.2.03AA because he did not provide the relevant statement referred to in r.2.03AA(3).

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. In his online application, dated 6 March 2017, the applicant indicated he had requested an Australian Federal Police (AFP) check on 13 December 2016, and provided a reference number. 

9. On 26 April 2017, his application was assessed by a Department case officer and the applicant was asked to provide evidence to satisfy the character requirement, relevantly, an AFP Complete Disclosure certificate.  He did not provide one and a decision was made to refuse his visa on the basis that he did not meet r.2.03AA(2)(a) and did not therefore satisfy cl.485.216.

10. The applicant has provided the Tribunal with a statement from an appropriate authority, an AFP Complete Disclosure certificate, dated 12 July 2018, and he therefore meets r.2.03AA(2)(a).

    Conclusion

11. There is no evidence before the Tribunal that the delegate made a request for the applicant to provide a completed Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

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

    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)

    Jennifer Cripps Watts
    Member