Devi (Migration)

[2019] AATA 3102

Devi (Migration) [2019] AATA 3102 (29 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Seema Devi
Mr Amandeep Kumar
Master Gavin Dhanda

CASE NUMBER:  1817309

HOME AFFAIRS REFERENCE(S):          BCC2018/1074066

MEMBER:Danielle Galvin

DATE:29 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that:

·The second named and third named applicants satisfy PIC4001 for the purposes of cl.485.313(1); and

·Each member of the family unit of the first named applicant meets PIC 4001 for the purposes of cl.485.216(3)

Statement made on 29 April 2019 at 10:09am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police check for partner provided – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 485.216(3), 485.313(1), Public Interest Criterion 4001, r 2.03AA(2)(a)-(b)

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 7 June 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 7 March 2018. 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 visas because the first named applicant (the applicant) did not satisfy cl.485.216(3) of Schedule 2 to the Regulations. It is a requirement of that clause that each member of the family unit of the applicant who is an applicant for a Subclass 485 visa satisfies Public Interest Criterion (PIC) 4001. Regulation 2.03AA(2)(a) prescribes that where a person is required to satisfy PIC 4001 for the grant of a visa, they must provide a statement (howsoever described) provided by an appropriate authority in a country where they reside, or have resided, that provides evidence about whether or not the person has a criminal history (if such a statement has been requested by the Minister).

4. The applicant has stated in their application to the Department that they had sought an Australian Federal Police (AFP) check of criminal records. However, a copy of a report was not submitted with the application.

5. On 19 March 2018 the applicant attached to her IMMI account an undated receipt for a AFP clearance certificate for Amandeep Kumar, her partner.

6. A Complete Disclosure AFP National Police Certificate dated 1 March 2018 in relation to Amandeep Kumar was provided to the Tribunal as part of the Department’s file but does not seem to have been available at the time of the Department decision.

7. On 10 April 2018 the Department wrote to the applicant and requested that the applicant provide, amongst other things, an AFP check, in relation to Amandeep Kumar, within 28 days from the date of that letter.

8. On 8 May 2018 the Department wrote a further letter to the applicant requesting evidence to satisfy the character requirement in relation to Amandeep Kumar, the partner of the applicant, within 28 days of the letter.

9. The delegate found that the applicant had not provided the requested evidence and therefore did not meet the criteria in cl.485.216(3).

10. On 13 June 2018 the applicant applied for a review of the Department’s decision.

11. On 25 March 2019 the Tribunal received a Complete Disclosure AFP National Police Check dated 19 March 2019 for Amandeep Kumar stating that that there were no discernible court outcomes in relation to the applicant’s partner.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant meets the requirements of cl 485.216(3). Whether the primary applicant meets cl.485.216(3) is dependent on whether or not the members of the family unit meet cl.485.313(1). That clause requires that the family members also meet PIC 4001.

    Evidence relating to police checks

14. The secondary applicants, Amandeep Kumar and Gavin Dhanda, the applicant’s son, have applied for visas as members of the family unit of the applicant.

15. As the delegate noted in the Department decision, r.2.03AA(2)(a) requires that, if requested the applicant provide a statement (howsoever described) from an authority in a country where they reside or have resided, that provides evidence about whether or not they have a criminal history.

16. At the time of the making of the delegate’s decision the relevant police check for the applicant’s partner, Amandeep Kumar, had not been provided to the Department. The delegate therefore refused the application of Mr Kumar under cl.485.313(1). The reason being that as Mr Kumar did not meet PIC 4001 because he did not meet r.2.03AA(2)(a) as the required AFP check had not been provided.

17. However, the primary applicant ultimately provided the appropriate checks for Amandeep Kumar dated 1 March 2018 and 19 March 2019.

18. Given that the requested AFP check has now been provided in relation to Mr Kumar and revealed that there are no discernible court outcomes in relation to him the Tribunal is satisfied that Mr Kumar meets the requirements of r.203AA(2)(a). There is no evidence before the Tribunal that the Department requested a completed Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply. There is nothing to indicate that Mr Kumar would fail to satisfy the Minister that he passes the character test and therefore the Tribunal finds that Mr Kumar satisfies PIC 4001(b). Accordingly, the Tribunal is satisfied that Mr Kumar satisfies PIC 4001 for the purposes of cl.485.313(1).

19. Gavin Dhanda, the son of Mrs Devi and Mr Kumar, was born on 11 March 2017. Given his young age the Tribunal is satisfied that there is nothing to indicate that he would fail to satisfy the Minister that he passes the character test. The Tribunal therefore finds that Master Dhanda satisfies PIC 4001(b). Accordingly the Tribunal is satisfied that Master Dhanda satisfies PIC 4001 for the purposes of cl.485.313(1).

20. Given the findings above in relation to Amandeep Kumar and Gavin Dhanda, the Tribunal considers it appropriate to find that each member of the family unit of Mrs Seema Devi meets PIC 4001, for the purposes of cl.485.216(3), and to leave the remainder of cl.485.216(3) to be assessed by the Department upon remittal

21. Accordingly the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria.

    DECISION

22. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that:

    ·The second named and third named applicants satisfy PIC 4001 for the purposes of cl.485.313(1); and

    ·Each member of the family unit of the first named applicant meets PIC 4001 for the purposes of cl.485.216(3).

    Danielle Galvin
    Member