BRAHMBHATT (Migration)

[2017] AATA 1348

BRAHMBHATT (Migration) [2017] AATA 1348 (28 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harsh Rameshchandra Brahmbhatt

CASE NUMBER:  1712898

DIBP REFERENCE(S):  BCC2017/1372285

MEMBER:Alison Mercer

DATE:28 July 2017

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)(a) for the purposes of cl.485.216 of Schedule 2 to the Regulations.

Statement made on 28 July 2017 at 1:54pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Public Interest Criterion – Character test – No evidence of criminal history

LEGISLATION
Migration Act 1958, ss 65, 360, 501

Migration Regulations 1994, r 2.03AA, 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 Immigration on 14 June 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 April 2017. 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 (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 cl.485.216 of Schedule 2 to the Regulations. The delegate noted that this clause required (amongst other things) that the applicant satisfied Public Interest Criterion 4001 (PIC 4001), which in turn required that he had an Australian Federal Police (AFP) clearance. The delegate found that although the applicant was requested to provide an AFP clearance, he did not provide one. She further found that it not unreasonable for the applicant to provide one. The delegate found that cl.485.216 was therefore not met because the applicant had not provided evidence that he had an AFP clearance as required by r.2.03AA(2).

4. The Tribunal received a review application from the applicant on 19 June 2017. It was accompanied by a copy of the delegate's decision, an AFP clearance issued to the applicant on 29 March 2017 indicating that the AFP had no records against his name, a copy of a booking for the applicant’s medical and x ray exam, and a copy of his IMAN health cover plan.

5. 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 section 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Clause 485.216(1) requires that, amongst other things, the applicant satisfies PIC 4001. PIC 4001 in turn requires that the applicant has satisfied the Minister that he passes the character test, or that the Minister is satisfied after appropriate inquiries that there is nothing to indicate that he would fail to satisfy the Minister that she passes the character test. (There are also provisions in PIC 4001 relating to where the Minister is not satisfied that the applicant passes the character test, or reasonably suspects that she does not, but decides to grant the visa anyway, but these do not appear relevant in the current case). The 'character test' is set out in s.501 of the Act. In addition, r.2.03AA(2)(a) requires that if a person is required to satisfy PIC 4001 for the grant of a visa, then they must provide a 'statement (however described) provided by an appropriate authority in a country where the person resides, that provides evidence about whether or not the person has a criminal history.'

8. There is no evidence before the Tribunal to indicate whether the delegate conducted a full character test assessment for the purposes of s.501 or made a finding that the applicant did not satisfy PIC 4001.

9. Rather, it appears evident to the Tribunal that the delegate considered that the applicant could not meet cl.485.216 because he had not provided an AFP clearance as at the date of the delegate's decision.

10. As the Tribunal has found that the applicant has now provided an AFP clearance issued on 29 March 2017 indicating that he does not have a criminal history, it considers it appropriate to find that the applicant meets r.2.03AA(2)(a) and to leave the remainder of PIC 4001 (and cl.485.216) to be assessed by the Department upon remittal.

11. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

12. 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) for the purposes of cl.485.216 of Schedule 2 to the Regulations.

    Alison Mercer
    Member