Acharya (Migration)

[2021] AATA 5101

Acharya (Migration) [2021] AATA 5101 (21 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bal Kishowr Acharya
Mrs Laxmi Chapagain

REPRESENTATIVE:  Mr Rupak Bartaula (MARN: 2117634)

CASE NUMBER:  2117298

HOME AFFAIRS REFERENCE(S):          BCC2021/367392

MEMBER:K. Chapman

DATE:21 December 2021

PLACE OF DECISION:  Brisbane

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 21 December 2021 at 4:19pm

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 remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 485.216, r 2.03; Schedule 4, Public Interest 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 11 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 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 to the Regulations requires the first named applicant (hereafter ‘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 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 visas on 22 November 2021 on the basis that the applicant did not meet r.2.03AA, because they failed to provide an Immigration/Citizenship Certificate from the Australian Federal Police (AFP) as requested.

6. The Tribunal did not consider a hearing to be necessary in this matter, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

7. Accordingly, for the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant has provided a statement by an appropriate authority in Australia that provides evidence about whether or not they have a criminal history.

   Has the applicant provided a statement from an appropriate authority?

9. The Tribunal is satisfied that the delegate made a request for the applicant to provide an Immigration/Citizenship Certificate from an appropriate authority, which in this case is the AFP, pertaining to a country where the applicant resides or has resided. In the circumstances, the applicant must provide the requested statement to satisfy r.2.03AA.

10. The applicant submitted to the Tribunal a copy of an Immigration/Citizenship Certificate dated    8 March 2021 issued by the AFP. The Certificate indicates there are no disclosable court outcomes recorded against the applicant’s name. Accordingly, the applicant has provided a statement from an appropriate authority and therefore satisfies r.2.03AA(2)(a). Additionally, a similar Certificate was submitted to the Department in respect of the second named applicant.

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 r.2.03AA(2)(b) does not apply.

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

13. The Tribunal finds that as the second named applicant applied for the visa on the basis of being a member of the family unit of the applicant, their application will be determined by reference to the outcome of the latter’s application on remittal to the Department for reconsideration.

    DECISION

14. 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).

    K. Chapman
    Member