De Silva (Migration)

[2022] AATA 1235

De Silva (Migration) [2022] AATA 1235 (16 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sarukkalige Dulitha Bhanuka De Silva
Mrs Naduni Sachinthanie Amarasinghe Amarasinghe Arachchige

REPRESENTATIVE:  Mr Amila Weerasinghe (MARN: 1067683)

CASE NUMBER:  2118543

HOME AFFAIRS REFERENCE(S):          BCC2020/2894329

MEMBER:Amanda Mendes Da Costa

DATE:16 February 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·cl 485.216(1) of Schedule 2 to the Regulations.

The Tribunal considers that the second named applicant’s visa application should be reconsidered in light of its findings regarding the first named applicant.

Statement made on 16 February 2022 at 12.39pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa– copy of a National Police Certificate provided– no disclosable outcomes recorded against the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 2.03AA, Schedule 2, cl 485.216

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 on 25 November 2021 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 28 December 2020. 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 (Cth) (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 visas because the first named applicant (the applicant) did not satisfy cl 485.216 of Schedule 2 to the Regulations because he did not provide he had not provided an appropriate Australian Federal Police (AFP) Check.

4. On the basis of the material in both the Department’s and Tribunal’s files, and in accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour.  It was therefore unnecessary for the applicant to appear before it at a hearing to give oral evidence in relation to the decision under review.

5. The applicants were represented in relation to the review.

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

   consideration of claims and evidence

7. The issue in the present case is whether the first named applicant (the applicant) meets the requirements of cl.485.216(1) to Schedule 2 to the Regulations.

   Evidence relating to police checks

8. Clause 485.216(1) requires that the applicant satisfies Public Interest Criteria (PIC) 4001 at the time of decision.  The delegate found that as the applicant is required to satisfy PIC 4001 for the grant of the visa, Regulation 2.03AA(1) applies.  This Regulation provides that in addition to the criteria prescribed by Regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or 4002 for the grant of the visa, the criterion in subregulation (2) is prescribed.

9. This subregulation states that:

   If the Minister has requested the following documents or information, the person has provided the documents or information:

   (a)a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided that provides evidence about whether or not the person has a criminal history;

   (b)a completed approved form 80.

   Note:        For paragraph (a) an example of an appropriate authority is a police force.

10. The delegate noted that although the applicant had provided a receipt for his application for an AFP certificate, he had not provided an AFP ‘Complete Disclosure’ certificate required by the Department.  The delegate found that the applicant had not provided a police clearance certificate or other statement (however described) provided by an appropriate authority in Australia being a country where the applicant resides, that provides evidence about whether or not the applicant has a criminal history and therefore had not satisfied the criterion in Regulation 2.03AA(2)(a).

11. The applicant has provided the Tribunal with an AFP ‘National Police Certificate, Immigration/Citizenship-Australia Name Check Only’ dated 26 November 2021 which shows that there are no disclosable court outcomes against the applicant.

12. The Tribunal does not consider that in order to satisfy the provisions of Regulation 2.03(2)(AA) the applicant required to provide an AFP ‘Complete Disclosure’ certificate as determined by the delegate.  The Tribunal finds that the AFP certificate provided to it by the applicant is a statement provided by an appropriate authority (being a police force) in a country where the applicant resides that provides evidence about whether or not he has a criminal history.

13. Therefore the applicant satisfies cl.485.216(1).

14. The Tribunal considers that the second named applicant’s visa application should be reconsidered in light of its findings regarding the first named applicant.

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

    DECISION

    ·The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.216(1) of Schedule 2 to the Regulations.

16. The Tribunal considers that the second named applicant’s visa application should be reconsidered in light of its findings regarding the first named applicant.

    Amanda Mendes Da Costa

    
    

    Member

    Subclass 485 – Temporary Graduate

    485.216

    (1)The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4020 and 4021.

    (2)If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

    (3)Each member of the family unit of the applicant who is an applicant for a Subclass 485 visa satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020.

    (4)Each member of the family unit of the applicant who:

    (a)is an applicant for a Subclass 485 visa; and

    (b)had turned 18 at the time of application;

    satisfies public interest criteria 4019.

    (5)Each member of the family unit of the applicant who:

    (a)is an applicant for a Subclass 485 visa; and

    (b)has not turned 18; and

    (c)made a combined application with the applicant;

    satisfies public interest criteria 4015 and 4016.

    2.03AACriteria applicable to character tests and security assessments

    (1)In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

    (2)If the Minister has requested the following documents or information, the person has provided the documents or information:

    (a)a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

    (b)a completed approved form 80.

    Note:For paragraph (a), an example of an appropriate authority is a police force.

    (3)The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.