DHIMAN (Migration)

[2018] AATA 4293

DHIMAN (Migration) [2018] AATA 4293 (7 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rohit Dhiman

CASE NUMBER:  1815919

HOME AFFAIRS REFERENCE(S):           BCC2018/1153541

MEMBER:Wan Shum

DATE:7 September 2018

PLACE OF DECISION:  Sydney

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:

·cl.485.213 of Schedule 2 to the Regulations.

Statement made on 07 September 2018 at 2:58pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – whether the applicant applied for an appropriate Australian Federal Police check – Standard Disclosure Police Certificate provided to the Department – Complete Disclosure National Police Certificate provided to the Tribunal –  timeframes met  – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 485.213

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 24 May 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 485 visa on 11 March 2018. 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).

3. The delegate was not satisfied that the applicant had applied for the appropriate Australian Federal Police check and refused to grant the visa finding that the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations.

4. The applicant has sought review of that decision and was represented in relation to the review by a registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the application was accompanied by evidence that the applicant, and each person included in the application who is at least 16, had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made as required by cl.485.213.

7. As set out in the delegate’s decision, the applicant had indicated on the visa application form that he had applied for an AFP check of criminal records in the 12 months prior.

8. The applicant then provided a “Standard Disclosure” Police Certificate dated 22 February 2018 to the department. It is clear that the applicant made the application for the check in the 12 months prior to the Subclass 485 visa application being made, which was lodged on 11 March 2018.

9. The delegate requested the applicant apply for a complete disclosure check and the applicant again submitted a Standard Disclosure check. The delegate found that the applicant did not satisfy the requirements of Regulation 485.213 “[a]s the applicant did not apply for the appropriate Australian Federal Police clearance during the 12 months immediately before the day they lodged their visa application.”

10. On review, the applicant has provided a Complete Disclosure National Police Certificate issued by the AFP dated 5 July 2018 indicating that there are no disclosable court outcomes recorded against his name.

11. The Tribunal notes that the department requires the Complete Disclosure Australian Federal Police and not the Standard Disclosure check. However, there is nothing in the terms of cl.485.213 which specifies that the AFP check is the “complete disclosure” check instead of the “standard disclosure” check. As the applicant had made an application for a check of criminal records in the 12 months prior to the visa application being made, the Tribunal finds that he does satisfy cl.485.213.

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

    DECISION

13. 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:

    ·cl.485.213 of Schedule 2 to the Regulations.

    Wan Shum
    Member