Brar (Migration)

[2021] AATA 5436

Brar (Migration) [2021] AATA 5436 (14 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Natha Singh Brar

CASE NUMBER:  2112561

HOME AFFAIRS REFERENCE(S):          BCC2020/2789140

MEMBER:Joseph Lindsay

DATE:14 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

·Public Interest Criterion 4001 and Regulation 2.03AA(2) for the purposes of cl 600.213(1) of Schedule 2 to the Regulations.

Statement made on 14 December 2021 at 12:23pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) –– Australian Federal Police National Police Certificate provided –decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360, 501

Migration Regulations 1994, r 2.03AA(2), Schedule 2, cls 600.213, Public Interest Criterion

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 Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 9 December 2020. The delegate refused to grant the visa on 31 August 2021.

2. There was no need to hold a hearing in this matter as the Tribunal was able to determine the matter in favour of the applicant on the material before it in accordance with s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The first issue in this case is whether the applicant meets PIC 4001. The second issue is whether the applicant meets Reg 2.03AA which requires the applicant to have provided appropriate police clearance documents.

5. PIC 4001 is set out in Schedule 4 to the Regulations. It provides that either:

   (a)       the person satisfies the Minister that she/he passes the ; or

   (b)       the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant/person would fail to satisfy the Minister that she/he passes the character test; or

   (c)       the Minister has decided not to refuse to grant a visa to the applicant/person despite reasonably suspecting that she/he does not pass the character test; or

   (d)       the Minister has decided not to refuse to grant a visa to the applicant/person despite not being satisfied that she/he passes the character test.

6. The delegate was not satisfied that the applicant met PIC 4001 as police clearance documents had not been provided.

7. The applicant has since provided to the Tribunal an Australian Federal Police National Police Certificate dated 15 April 2021 certifying that there were no disclosable court outcomes in relation to the applicant. The applicant also provided a certificate from the Consulate General of India, Melbourne, indicating that the applicant did not have a criminal record.

8. The Tribunal is satisfied on the basis of these certificates that the applicant meets PIC 4001(b) in that after appropriate enquiries there is nothing to indicate that the applicant would fail to satisfy the Minister that the applicant passes the character test set out in s 501(6) of the Act. These police clearance certificates indicate that there is no adverse information about the applicant which would result in the applicant not meeting any of the categories set out in s 501(6).

9. Regulation 2.03AA requires that where the Minister has requested certain documents or information from an appropriate authority where the applicant has resided, the person has provided the documents or information. The Department requested that the applicant provide police clearance documents on a number of occasions. The applicant has now provided those documents from the appropriate authorities from India and Australia, as referred to earlier. The Tribunal is therefore satisfied that the applicant meets Regulation 2.03AA(a).

   DECISION

10. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

    ·Public Interest Criteria 4001 and Regulation 2.03AA(2) for the purposes of cl 600.213(1) of Schedule 2 to the Regulations.

    Joseph Lindsay
    Member