ADHIKARI (Migration)

[2019] AATA 5159

ADHIKARI (Migration) [2019] AATA 5159 (14 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chetan ADHIKARI
Ms Puja SHAHI

CASE NUMBER:  1927539

DIBP REFERENCE(S):  BCC2019/709895

MEMBER:R. Skaros

DATE:14 November 2019

PLACE OF DECISION:  Sydney

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)(a).

Statement made on 14 November 2019 at 3:29pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – character test – statement from an appropriate authority – AFP Complete Disclosure certificate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 485.216; Schedule 4, 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 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 17 July 2019. The criteria for a Skilled (Provisional) (Class VC) visa are set out in Schedule 2 to the Migration Regulations 1994 (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: r.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 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 23 September 2019 on the basis that the first named applicant did not meet r.2.03AA because the first named applicant did not provide an AFP Complete Disclosure certificate when requested by the delegate.

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 first named 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. On 22 August 2019, the first named applicant was requested by the Department to provide an Australian Federal Police (AFP) clearance National Police Check.  The first named applicant had not provided the requested information within the period allowed by the delegate. The delegate proceeded to refuse the application on the basis that the first named applicant did not provide the requested police clearance certificate.

9. On review, the first named applicant provided a copy of his AFP Complete Disclosure certificate issued on 18 September 2019, showing no disclosable outcomes.

10. The Tribunal finds that the first named applicant has now provided the requested statement from the appropriate authority about whether or not he has a criminal history and therefore meets r.2.03AA(2)(a).

11. On the basis of the above findings, the first named applicant meets r.2.03AA(2)(a).

12. In relation to the second named applicant, the Tribunal notes that the Department refused her application on the basis that she was not a member of the family unit of a person that holds a relevant visa.  The Tribunal notes that on remittal of this matter, and based on the outcome of the first named applicant’s application for the visa, the Department will reconsider the second named applicant’s eligibility for the visa.

    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)(a).

    R. Skaros
    Senior Member