YU (Migration)

[2017] AATA 1861

YU (Migration) [2017] AATA 1861 (3 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms YAO YU

CASE NUMBER:  1717083

DIBP REFERENCE(S):  BCC2017/1883493

MEMBER:Antonio Dronjic

DATE:3 October 2017

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:

·PIC 4001 for the purposes of meeting the cl.485.216 (1) of Schedule 2 to the Regulations.

Statement made on 03 October 2017 at 11:51am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Failed to provide the Australian Federal Police (AFP) Clearance – Applicant passes the character test

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 485.216, Public Interest Criteria (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 on 18 July 2017 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 27 May 2017. 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 (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 the applicant has failed to provide the Australian Federal Police (AFP) Clearance.

4. With the review application, the applicant submitted:

   ·Submissions;

   ·Receipt issued by the AFP as evidence that the applicant applied for the police clearance on 26 May 2017; and

   ·AFP Clearance certificate dated 18 July 2017.

5. Under subsection 360(2)(a) of the Act the Tribunal considered that it should decide the review in the visa applicants’ favour on the basis of the material before it, so there was no need for the visa applicants to be invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the Public Interest Criteria (PIC) 4001 for the purposes of meeting cl.485.216(1) (the character test).

7. PIC 4001 prescribes that:

   Either:

   (a)  the person satisfies the Minister that the person passes the character test; or

   (b)  the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

   (c)  the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

   (d)  the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

8. With his review application, the applicant has submitted AFP Clearance certificate dated 18 July 2017. Based on this evidence I am satisfied that the applicant passes the character test for the purposes of PIC 4001. It follows that the applicant meets cl.485.216(1)

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

   DECISION

10. 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:

    ·PIC 4001 for the purposes of meeting cl.485.216 (1) of Schedule 2 to the Regulations.

    Antonio Dronjic
    Member