Yuan (Migration)

[2022] AATA 3701

Yuan (Migration) [2022] AATA 3701 (21 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiaohan Yuan

REPRESENTATIVE:  Mr Wai Lap Lai (MARN: 1465894)

CASE NUMBER:  2207456

HOME AFFAIRS REFERENCE(S):          BCC2020/2755341

MEMBER:Antonio Dronjic

DATE:21 September 2022

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:

·Regulation 2.03AA(2)

Statement made on 21 September 2022 at 2:15pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – copy of a National Police Certificate provided– no disclosable outcomes recorded against the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA, Public Interest Criterion (‘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 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 3 December 2020. The criteria for a Skilled (Provisional) (Class VC) visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (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: reg 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 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 reg 2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 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 5 May 2022 on the basis that the applicant did not meet reg 2.03AA because the applicant did not provide a Complete Disclosure National Police Certificate from the Australian Federal Police (AFP) as requested.

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

   consideration of claims and evidence

   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?

7. According to the primary decision record, on 1 December 2021, the application was assessed, and the Department sent an email to the applicant requesting her to provide evidence that she has obtained the required AFP Complete Disclosure clearance.

8. The Tribunal is satisfied that the delegate made a request for the applicant to provide a Complete Disclosure certificate from an appropriate authority, which in this case is the AFP, in a country where the applicant resides or has resided: Australia. In the circumstances, the applicant must provide the requested statement to meet the r.2.03AA.

9. On review, the Tribunal received a copy of a National Police Certificate - Complete Disclosure dated 12 January 2022 issued by the AFP. The certificate indicates that there are no disclosable court outcomes recorded against the applicant’s name.

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

    Conclusion

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

12. On the basis of the above findings, the applicant meets reg 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).

    Antonio Dronjic
    Member