Ande (Migration) - [2021] AATA 4726

Ande (Migration) [2021] AATA 4726 (26 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Manikanta Satyanarayana Murthy Ande
CASE NUMBER:  2115685
HOME AFFAIRS REFERENCE(S):          BCC2020/1163377
MEMBER:Alison Mercer
DATE:26 November 2021
PLACE OF DECISION:  Melbourne
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) in relation to PIC 4001 for the purposes of cl 485.216 of the Regulations.

Statement made on 26 November 2021 at 4:07pm

CASE
Singh v MICMSMA [2021] FCCA 905
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 October 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 13 March 2020. 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.
The delegate refused to grant the visa because the applicant did not satisfy cl 485.216 of Schedule 2 to the Regulations. This required that, amongst other things, the applicant satisfied Public Interest Criterion 4001 (PIC 4001) of Schedule 4 to the Regulations. This in turn required the delegate assessed the applicant against the terms of the ‘character test’. Under Departmental policy, a component of assessing a person against PIC 4001 for temporary or permanent migration was the provision of a police clearance certificate for each country in which that person has lived for 12 months or more, over the last 10 years, since turning 16 years of age. As the applicant was required to satisfy PIC 4001 for the grant of the visa, r.2.03AA applied. This regulation stated that the applicant had to provide an appropriate police check (or checks) and/or a form 80 if requested to do so.
The delegate noted that the applicant had stated in his subclass 485 visa application that he had applied for an AFP check prior to making his visa application, and the receipt he attached indicated that he had done so. Although he was requested to provide the AFP Complete Disclosure certificate, the applicant uploaded an AFP Complete Disclosure to the Department on 7 July 2020, but this document did not provide the applicant’s full name as per his passport and for that reason a second request was made to the applicant to provide an AFP Complete Disclosure check in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 4726
Decision Date: 26 November 2021

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate), by the applicant, Ande. The dispute centred on whether the applicant had satisfied the character requirements, specifically Public Interest Criterion (PIC) 4001, as mandated by regulation 2.03AA of the Migration Regulations 1994 (Cth). The decision was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had provided the requisite police clearances to satisfy regulation 2.03AA(2)(a) of the Regulations, which requires evidence of a criminal history from a relevant authority. A secondary issue arose concerning clause 485.213, which requires evidence of an application for an Australian Federal Police check within the 12 months preceding the visa application. The Tribunal also considered whether departmental policy requiring a "Complete Disclosure Certificate" for AFP checks was consistent with the wording of the relevant clauses.

The Tribunal reasoned that while the Department had initially found the provided AFP checks insufficient, the applicant had subsequently submitted an AFP Immigration/Citizenship check issued on 2 November 2021, in his full name, which indicated no disclosable outcomes. The Tribunal was satisfied that this new evidence met the requirements of regulation 2.03AA(2)(a). Furthermore, referencing the Federal Circuit Court decision in *Singh v MICMSMA* [2021] FCCA 905, the Tribunal noted that clause 485.213 refers to an "Australian Federal Police check" generally, not a specific type of certificate, suggesting that evidence of an application for a standard disclosure check within the preceding 12 months would suffice.

Accordingly, the Tribunal remitted the application for reconsideration of the remaining criteria for a subclass 485 visa, with a direction that the applicant met regulation 2.03AA(2) in relation to PIC 4001 for the purposes of clause 485.216.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF LAW, CLAIMS AND EVIDENCE Regulation 2.03AA of the Migration Regulations 1994 (Cth) (the Regulations) applies where a person is required to satisfy Public Interest Criteria (PIC) 4001 or 4002: r.2.03AA(1). In this case, cl.485.216 of Schedule 2 to the Regulations requires the applicant to meet PIC 4001. The applicant was therefore required to satisfy the criteria in r.2.03AA(2). Regulation 2.03AA(2) 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. The Tribunal may waive the requirement in r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 2.03AA(3). Regulation 2.03AA(2)(b) requires that the applicant must provide a Form 80 if requested to do so. The Tribunal cannot waive the reg 2.03AA(2)(b) requirement. The Tribunal is satisfied that r.2.03AA(2)(b) does not apply in this case, as there is no evidence on the Department file that the applicant was requested to provide a Form 80. Therefore, the issue in this case is whether the applicant has provided the requisite police clearances to satisfy the criteria in reg 2.03AA(2)(a) of the Regulations. The Tribunal has reviewed the Department’s file and notes that the applicant indicated in his visa application that he had applied for an AFP check in the 12 months prior to making his subclass 485 visa application, and as proof of that, uploaded an invoice indicating that he had applied for an AFP Standard check on 7 March 2020. As noted above, the delegate found that the AFP Complete Disclosure check the applicant subsequently provided after lodgment of his visa application did not meet the Department’s guidelines, as it did not include the applicant’s full name as per his passport. The subsequent AFP Standard Disclosure check he provided did include his full name, but did not meet the Department’s guidelines which at that time required a Full Disclosure check. The applicant has now provided to the Tribunal an AFP Immigration/Citizenship check issued on 2 November 2021 indicating that there are no disclosable outcomes against his name. The check is issued in his full name as it appears in his passport. In light of the new evidence received, the Tribunal is satisfied that the applicant has now provided the requisite Police Clearance Certificate from the relevant authority (the AFP) which provides evidence as to whether or not he has a criminal history. The applicant therefore meets the requirements of reg 2.03AA(2) for the purposes of PIC 4001 and cl.485.216. The Tribunal further notes that to satisfy another criterion, namely cl.485.213, a subclass 485 visa application must be accompanied by evidence the applicant has applied for ‘an Australian Federal Police check’ during the 12 months preceding the application. Though Departmental policy requires the AFP check to be in the form of a ‘Complete Disclosure Certificate’, the Tribunal notes that recently the Federal Circuit Court held in Singh v MICMSMA [2021] FCCA 905 that cl.485.213 refers only to an ‘Australian Federal Police check’, not a particular kind or type of check (such as a ‘Complete’ or ‘Full’ disclosure certificate). This suggests that the evidence provided that the applicant applied for a standard disclosure certificate from the AFP (within the 12 months before applying for the visa) would be sufficient to satisfy cl 485.213, provided the evidence accompanied the visa application. In that respect, it also appears to the Tribunal that the AFP receipt invoice uploaded with the applicant’s visa application is ‘evidence’ of an application for an AFP check.

Decision

Reasons for decision

Accordingly, the Tribunal considers the appropriate course is to remit the matter for reconsideration of the remaining criteria for a subclass 485 visa.DECISION The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 485 visa:·regulation 2.03AA(2) in relation to PIC 4001 for the purposes of cl 485.216 of the Regulations.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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