Batkhuu (Migration)

[2023] AATA 3136

Batkhuu (Migration) [2023] AATA 3136 (25 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tuguldur Batkhuu

REPRESENTATIVE:  Mr Ruslan Ahmadzai

CASE NUMBER:  2312065

HOME AFFAIRS REFERENCE(S):          BCC2023/2046400

MEMBER:Wan Shum

DATE:25 September 2023

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)

Statement made on 25 September 2023 at 12:44pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history – Mongolian Reference on Civil Criminal Records provided upon review – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 485.216; Schedule 4, Public Interest Criterion 4001; r 2.03

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 30 March 2023. 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 408.216(1) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. 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 5 June 2023 on the basis that the applicant did not satisfy the criterion in reg 2.03AA because the applicant did not provide the information or the documents requested.

6. The applicant sought review of that decision and provided a copy of a Reference on Civil Criminal Records issued by the National Police Agency of Mongolia with translation.

7. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets reg 2.03AA. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s criminal history.

9. The Department wrote to the applicant requesting police clearance certificates for each country in which he had lived for 12 months or more, over the last 10 years, since turning 16 years of age. The applicant provided an Immigration/Citizenship check from the AFP before but not one from Mongolia before the decision was made.

10. After making the application for review, the applicant has since provided a copy of a Reference on Civil Criminal Records issued by the National Police Agency of Mongolia issued on 1 September 2023 stating that there are no records in respect of the applicant.

11. As the applicant has now complied with the request to provide evidence of police clearance certificates of the kind requested, the Tribunal finds that the applicant satisfies the criterion in reg 2.03AA(2)(a).

12. As the requested documents have been provided on review, the delegate is now able to assess whether the applicant meets PIC 4001.

13. The Tribunal remits the matter with a direction that the applicant satisfies reg 2.03AA. The Minister is now in a position to undertake consideration of whether the applicant meets cl 485.216 and the remaining criteria for the grant of a Subclass 485 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).

    Wan Shum
    Member