Dhungana (Migration)

[2021] AATA 5222

Dhungana (Migration) [2021] AATA 5222 (20 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Santosh Dhungana
Mrs Ambika Aryal

CASE NUMBER:  2112840

HOME AFFAIRS REFERENCE(S):          BCC2020/225480

MEMBER:Sheridan Lee

DATE:20 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the requirements of Public interest Criterion 4001 for the purposes of cl.485.216(1) of Schedule 2 to the Migration Regulations 1994

Statement made on 20 October 2021 at 10:53 am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – character test – statement from an appropriate authority – National Police Certificate – no disclosable court outcomes – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 485.216; Schedule 4, PIC 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 applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 29 January 2020. The delegate refused to grant the visas on 13 September 2021.

2. The delegate made the decision on the basis that evidence of criminal history was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. The Tribunal has before it a National Police Certificate issued to Santosh Dhungana on 21 September 2021, which reports no disclosable court outcomes. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

5. As the secondary applicant applied for the visa on the basis of being a member of the same family unit as the primary applicant, her application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

   DECISION

6. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the requirements of Public interest Criterion 4001 for the purposes of cl.485.216(1) of Schedule 2 to the Migration Regulations 1994.

   Sheridan Lee
   Member