Zou (Migration)

[2024] AATA 4023

Zou (Migration) [2024] AATA 4023 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Quan Zou

REPRESENTATIVE:  Ms Wenqing Jing

CASE NUMBER:  2433471

HOME AFFAIRS REFERENCE(S):          BCC2024/1739102

MEMBER:Member Nathan Goetz

DATE:10 October 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision dated 3 September 2024 refusing to grant the applicant a Skilled (Provisional) (Class VC) visa and remits the visa application back to the delegate for reconsideration, with a direction that the applicant meets the following criteria for the grant of the visa:

·   Regulation 2.03AA(2)(a)

Statement made on 10 October 2024 at 6:02pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history – Australian Federal Police Immigration/Citizenship Certificate provided upon review – decision under review set aside        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.216; Schedule 4, Public Interest Criterion 4001; r 2.03AA

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister who refused to grant the applicant a Skilled (Provisional) (Class VC) visa.

2. The applicant was represented in the review by registered migration agent 2318218.

   BACKGROUND

3. The applicant applied for the visa on 15 March 2024. 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.

4. 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 reg 2.03AA(2).

5. 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.

6. On 19 July 2024 the delegate wrote to the applicant and requested the applicant provide an Australian Federal Police Immigration/Citizenship -Australia Certificate. The applicant was given 28 days to provide the certificate. The applicant did not provide the certificate within the 28 days provided by the delegate.

7. On 3 September 2024 the delegate refused to grant the visa on the basis that the applicant did not meet reg 2.03AA because the applicant did not satisfy reg 2.03AA(2) because the applicant did not provide a police clearance certificate as requested by the delegate.

8. On 16 September 2024 an application was made to the Tribunal for merits review of the decision. Included with the review application was a document dated 16 March 2024 issued by the Australian Federal Police which advised that the applicant had no disclosable court outcomes as of 16 March 2024.

   CONSIDERATION AND CONCLUSION

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

   Has the applicant provided a statement from an appropriate authority?

10. The certificate issued by the Australian Federal Police dated 16 March 2024 demonstrates that the applicant has provided a statement from an appropriate authority as requested by the delegate. It is regrettable that the applicant did not provide this certificate to the delegate when asked to do so.

11. In those circumstances, the applicant meets reg 2.03AA(2)(a).

    DECISION

12. The Tribunal sets aside the decision dated 3 September 2024 refusing to grant the applicant a Skilled (Provisional) (Class VC) visa and remits the visa application back to the delegate for reconsideration, with a direction that the applicant meets the following criteria for the grant of the visa:

    ·     Regulation 2.03AA(2)

    Nathan Goetz

    
    

    Member