Amit (Migration)

[2022] AATA 5104

Amit (Migration) [2022] AATA 5104 (5 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Amit

CASE NUMBER:  2213044

HOME AFFAIRS REFERENCE(S):          BCC2021/346737

MEMBER:Amanda Mendes Da Costa

DATE:5 December 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Graduate (class VC) (Post-Study Work) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·Public Interest Criterion 4001 for the purpose of cl 485.216(1) of Schedule 2 to the Regulations.

Statement made on 5 December 2022 at 1.05pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – character test – statement from an appropriate authority – AFP ‘National Police Certificate, Immigration/Citizenship-Australia Name Check Only’ – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), 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 Home Affairs on 15 August 2022 to refuse to grant the applicant a Temporary Graduate (class VC) (Post-Study Work) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 August 2022. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy Public Interest Criterion 4001 for the purpose of cl 485.216(1) of Schedule 2 to the Regulations because he had not met the character requirements for the grant of the visa.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, 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.

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

   consideration of claims and evidence

6. The issue in the present case is whether the applicant meets the requirements of Public Interest Criterion 4001 for the purpose of cl 485.216(1) of Schedule 2 to the Regulations.

   Evidence relating to police checks

7. Clause 485.216(1) requires that the applicant satisfies Public Interest Criteria (PIC) 4001 at the time of decision.  The delegate found that as the applicant is required to satisfy PIC 4001 for the grant of the visa, Regulation 2.03AA(1) applies.  This Regulation provides that in addition to the criteria prescribed by Regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or 4002 for the grant of the visa, the criterion in subregulation (2) is prescribed.

8. This subregulation states that:

   If the Minister has requested the following documents or information, the person has provided the documents or information:

   (a)a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided that provides evidence about whether or not the person has a criminal history.

   (b)a completed approved form 80.

   Note:        For paragraph (a) an example of an appropriate authority is a police force.

9. The Tribunal has provided the Tribunal with an AFP ‘National Police Certificate, Immigration/Citizenship-Australia Name Check Only’ dated 14 October 2022 which shows that there are no disclosable court outcomes against the applicant.

10. The Tribunal finds that the AFP certificate provided to it by the applicant is a statement provided by an appropriate authority (being a police force) in a country where the applicant resides that provides evidence about whether or not he has a criminal history and therefore meets the requirements of Public Interest Criterion 4001 for the purpose of cl.485.216(1).

11. Based on the above findings, the Tribunal finds that the applicant meets the requirements of Public Interest Criterion 4001 for the purpose of cl 485.216(1). The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

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

    DECISION

13. The Tribunal remits the application for a Temporary Graduate (class VC) (Post-Study Work) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·Public Interest Criterion 4001 for the purpose of cl 485.216(1) of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member