Adulla (Migration)

[2022] AATA 757

Adulla (Migration) [2022] AATA 757 (18 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prakash Reddy Adulla

REPRESENTATIVE:  Mr Sudeep Reddy Alleti (MARN: 1800828)

CASE NUMBER:  2201893

HOME AFFAIRS REFERENCE(S):          BCC2021/386195

MEMBER:R. Skaros

DATE:18 March 2022

PLACE OF DECISION:  Sydney

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)(a).

Statement made on 18 March 2022 at 9:09am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history – Australian Federal Police National Police Certificate provided upon review – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.216, r 2.03AA; 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 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 13 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, 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).

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 7 February 2022 because the applicant did not provide an Australian Federal Police (AFP) National Police Certificate requested by the Department.

6. The Tribunal did not consider a hearing to be necessary in this case as it was able to find in favour of the applicant on the material before it.

7. 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 that provides evidence about whether or not the person has a criminal history

   Has the applicant provided a statement from an appropriate authority?

9. The applicant stated in his visa application that he had applied for an AFP Police check. However, he did not provide this evidence to the Department.

10. On 22 September 2021 the Department requested that the applicant provide an AFP National Police Certificate. He did not provide this information within the specified timeframe, and the delegate was not satisfied that he met the requirements of r.2.03AA(2).

11. The applicant provided the Tribunal with AFP National Police Certificates dated 5 March 2021 and 10 February 2022, both of which state that there were no disclosable court outcomes recorded against the applicant.

12. On the evidence before it, the Tribunal is satisfied that the applicant has provided as statement from an appropriate authority and finds that he meets r.2.03AA(2)(a). 

13. Given these findings, the appropriate course is to remit the application to the Minister to consider the remaining criteria for the visa.

    DECISION

14. 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)(a).

    R. Skaros
    Senior Member