Cuttilan (Migration)

[2024] ARTA 73

DECISION AND  

REASONS FOR DECISION

Cuttilan (Migration) [2024] ARTA 73 (26 November 2024)

Applicants:Mr Dilwan Sujan Cuttilan
Mrs Dinushi Dilhari Cuttilan Kuda Kuruduwage
Miss Deana Evie Cuttilan
Miss Dia Faith Cuttilan

Respondent:  Minister for Home Affairs

Tribunal Number:  2439366

Tribunal:General Member W Shum

Place:Sydney

Date:  26 November 2024

Decision:The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

•  reg 2.03AA

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history statement – AFP national police certificates for first and second applicant parents provided to tribunal – members of family unit children – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA(1), (2)(a), Schedule 2, cl 485.216(1), Schedule 4, criteria 4001, 4002

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 October 2024 to refuse to grant Skilled (Provisional) (Class VC) to the applicants under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the Subclass 485 visas on 27 February 2024. The criteria for a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations which includes reg 2.03AA which 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(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).

3. 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.

4. The delegate found that the first named applicant (the applicant) did not satisfy the criterion in reg 2.03AA because the applicant did not provide the information or the documents requested within the time allowed. The other applicants were refused as a consequence because they were not members of the family of a person who had been granted a Subclass 485 visa.

5. The applicants sought review of the decisions and were represented in relation to the review.

6. On review, the Tribunal received a copy of a digital National Police certificate issued by the Australian Federal Police (AFP) in respect of the first and second named applicants.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. The Department wrote to the applicants requesting a new AFP National Police Certificate for each of the first and second named applicants.

9. The applicants did not provide the requested document and the delegate proceeded to a decision.

10. After making the application for review, the Tribunal was provided with digital National Police certificates issued by the Australian Federal Police (AFP) in respect of the first and second named applicants.

11. As the applicant has now complied with the request to provide the AFP National Police Certificate, for the countries he has resided in for at least 12 months in the past 10 years, 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(1) and the remaining criteria for the grant of Subclass 485 visas to the applicants.

    DECISION

14. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    ·            reg 2.03AA

    Date(s) of hearing:  NA

    Representative for the Applicant:           Mr Amrit Pal Jagota (MARN: 0532014)