Matthews (Migration) [2023] AATA 490 (9 March 2023)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANTS:	Mr Samuel John Matthews
Miss Catarina Ellen Aarnio 
Miss Lucy Emillia Matthews 
REPRESENTATIVE:	Mr Nicholas Yock (MARN: 1466286)
CASE NUMBER:	2214330
HOME AFFAIRS REFERENCE(S):	BCC2021/344499 
MEMBER:	Nicole Burns
DATE:	9 March 2023
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:
•	Regulation 2.03AA(2)

Statement made on 09 March 2023 at 3:37pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history statement – AFP certificate provided to department expired before application considered and no further certificate provided when requested – current certificate provided to tribunal – no disclosable court outcomes – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 2, cls 485.216(1), 485.311, Schedule 4, criterion 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 applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act). 
2.  	The applicants applied for the visas on 9 March 2021. 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, subclause 485.216(1) 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).
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 visas on 23 September 2022 on the basis that the applicant did not meet reg 2.03AA because the applicant did not provide a statement from an appropriate authority in Australia that provides evidence about whether or not he has a criminal history, despite being requested in writing to do so.   
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.  	According to information contained in the delegate’s decision record (a copy of which the applicant provided to the Tribunal on review), the applicant had provided a copy of his Australian Federal Police (AFP) Police clearance certificate dated 12 January 2021 when he applied for the visa, however by the time the delegate considered the matter it had expired.  The delegate requested he provide an AFP Complete Disclosure/Immigration Citizenship clearance certificate however by the time they made their decision he had not done so.
9.  	On review the applicant provided to the Tribunal a copy of an AFP ‘Immigration/Citizenship – Australia, Name Check Only’ certificate dated 29 September 2022 which certifies that there are no disclosable court outcomes recorded against the applicant in the records of the AFP and the police in all Australian states and Territories as of 27 September 2022.  
10.  	The applicant has provided a statement from an appropriate authority (in Australia) and therefore meets reg 2.03AA(2)(a).
11.  	On the basis of the above findings, the Tribunal is satisfied the applicant meets reg 2.03AA(2).
12.  	The Tribunal notes a copy of an AFP ‘Immigration/Citizenship – Australia, Name Check Only’ certificate dated 20 October 2022 was also provided in respect of the second named applicant.  She was refused the visa (along with the third named applicant) because the delegate was not satisfied they were members of the family unit of a person who holds a Subclass 485 visa, required to meet cl 485.311.  The appropriate course is for the Department to consider whether they now meet the criteria for a Subclass 485 visa given the Tribunal’s findings above in respect of the first named applicant.  
decision
13.  	The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:
•	Regulation 2.03AA(2).

Nicole Burns
Member