Basnet (Migration)

[2022] AATA 1266

Basnet (Migration) [2022] AATA 1266 (18 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manish Basnet

REPRESENTATIVE:  Mr Wilson Kumar Sharma (MARN: 1793491)

CASE NUMBER:  2202077

HOME AFFAIRS REFERENCE(S):          BCC2021/1002263

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 9:25am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – character test – statement from an appropriate authority – Australian Federal Police (AFP) National Police Certificate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cls 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 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 28 April 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 2 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. In the visa application lodged on 28 April 2021, the applicant stated that he had applied to the AFP for a check of his criminal history. However, he did not provide this or any other evidence to the Department.

10. In a letter dated 29 September 2021 the Department requested that the applicant provide an AFP National Police Certificate. The applicant 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 has now provided the Tribunal with an AFP National Police Certificate dated 28 April 2021 which states 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