Jeyaruban (Migration)

[2024] AATA 2353

Jeyaruban (Migration) [2024] AATA 2353 (24 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Vithura Jeyaruban
Mr Jeyaruban Velupillai
Miss Aathviga Jeyaruban

REPRESENTATIVE:  Mr Usman Obaid Syed

CASE NUMBER:  2410922

HOME AFFAIRS REFERENCE(S):          BCC2023/5164464

MEMBER:Member Nathan Goetz

DATE:24 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision of the delegate dated 30 April 2024 refusing to grant each applicant a Temporary Graduate (class VC) Temporary Graduate (Graduate Work) (subclass 485) visa and remits the visa applications back to the delegate for reconsideration with the following directions:

·Ms Vithura Jeyaruban satisfies regulation 2.03AA of Part 2 of the Migration Regulations 1994 (Cth) for the purpose of PIC 4001 for the purpose of cl 485.216 of Schedule 2 to the Migration Regulations 1994 (Cth).

·Mr Jeyaruban Velupillai and Miss Aathviga Jeyaruban would satisfy the requirements of cl 485.311 of Schedule 2 to the Migration Regulations 1994 (Cth) in the event that Vithura Jeyaruban is granted a Temporary Graduate (class VC) Temporary Graduate (Graduate Work) (subclass 485) visa.

Statement made on 24 June 2024 at 4:24pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Graduate Work) – criminal history – Australian Federal Police Digital National Police Certificate provided upon review – decision under review set aside  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.216, 485.311; Schedule 4, Public Interest Criterion 4001; r 2.03

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decisions made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant each applicant a Skilled (Provisional) (Class VC) Subclass 485 visa.

2. The applicants were represented in the review by registered migration agent 2117380).

   BACKGROUND AND CRITERIA FOR THE VISA

3. The applicants are Ms Vithura Jeyaruban, who was born on 8 June 1985 in Sri Lanka and is a citizen of that country, her husband Mr Jeyaruban Velupillai, who was born on 2 July 1987 in Sri Lanka and is a citizen of that country, and their daughter Miss Aathviga Jeyaruban who was born on 5 February 2020 in Australia and is a citizen of Sri Lanka. All three applicants are presently located in Australia.

4. On 7 September 2023 the applicants applied for the visa. They were all included in one visa application form.

5. The criteria for the grant of the Temporary Graduate (class VC) Temporary Graduate (Graduate Work) (subclass 485) are contained in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

6. On 30 April 2024 the delegate refused to grant each applicant the visa.

7. The delegate was not satisfied that Ms Vithura Jeyaruban satisfied cl 485.216.

8. This requires the following:

   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.

   Public Interest Criteria (PIC) 4001 requires the assessment of the applicant against the terms of the 'character test'.

   To assess an applicant against PIC 4001, regulation 2:03AA of Part 2 of the Migration Regulations 1994 (the Regulations) applies:

   2.03AA Criteria 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

9. The delegate was not satisfied that Mr Jeyaruban Velupillai and Miss Aathviga Jeyaruban satisfied cl 485.311. This requires the following:

   485.311 

   The applicant:

   (a)  is a member of the family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and made a combined application with that person; or

   (b)  is a member of the family unit of a person who holds a Skilled (Provisional) (Class VC) visa on the basis of satisfying the primary criteria for the grant of a Subclass 485 visa.

10. On 7 May 2024 an application was lodged with the Tribunal to review the decision.

    CONSIDERATION AND FINDINGS

11. If the Tribunal is satisfied that each applicant meets the requirements for the grant of the visa upon which the delegate refused to grant the visa, the correct or preferable decision is to set aside the decision of the delegate refusing to grant the visa and remit the visa application back to the delegate for reconsideration, with a direction concerning the criteria the Tribunal has found each applicant to satisfy.

12. For the following reasons, the Tribunal has concluded it should remit the visa application.

13. On 25 January 2024 the delegate wrote to Ms Vithura Jeyaruban and requested she provide an Australian Federal Police (AFP) National Police Certificate that also included her alias Vithura Chandirakayam. She was given 28 days to provide this certificate but did not do so.

14. As a result, the delegate was not satisfied that Ms Vithura Jeyaruban satisfied PIC 4001 because she had not provided a statement provided by an appropriate authority in a country where the person resides that demonstrated whether or not she had a criminal history and therefore the delegate refused to grant the visa. She therefore failed to satisfy cl 485.216.

15. This refusal had a flow on effect for the visa applications of Mr Jeyaruban Velupillai

    
    

    and Miss Aathviga Jeyaruban because it was required that they be a member of the family unit s a person who holds a Subclass 485 visa. As a result of Ms Vithura Jeyaruban being refused the visa, it followed that Mr Jeyaruban Velupillai and Miss Aathviga Jeyaruban did not satisfy cl 485.311.

16. After the review application was lodged with the Tribunal, the Tribunal was provided with a An Australian Federal Police Digital National Police Certificate dated 4 May 2024 for Ms Vithura Jeyaruban, which also noted her aliases of Vithura Santhirakayan, Vithura Chandrakayam and Vithura Chandirakayam. The document certificated that there were no disclosable court outcomes recorded against any of those names.

17. Ms Vithura Jeyaruban has now provided a statement from an appropriate authority where she resides about whether or not she has a criminal history as requested by the delegate. The delegate has not requested that Ms Vithura Jeyaruban provide a completed form 80 and therefore satisfies 2.03AA for the purpose of PIC 4001 for the purpose of cl 485.216 of Schedule 2 to the Regulations.

18. Although this does not mean that Ms Vithura Jeyaruban has been granted the visa, it would be poor administrative decision making for the Tribunal to determine that Mr Jeyaruban Velupillai and Miss Aathviga Jeyaruban do not satisfy cl 485.311 on the basis that Ms Vithura Jeyaruban’s visa application has been remitted to the delegate for reconsideration. The other alternative would result in the Tribunal having to hold onto the decisions in respect of Mr Jeyaruban Velupillai and Miss Aathviga Jeyaruban until the delegate made a decision to either grant or refuse Ms Vithura Jeyaruban the visa and then make a determination in respect of those applications. The Tribunal’s assessment is that it would be poor administration to do so, and it would be preferable to have all three applicants before the delegate for consideration.

19. Therefore, in respect of Mr Jeyaruban Velupillai and Miss Aathviga Jeyaruban, the Tribunal determines that the permissible direction is a conditional one, namely that if Ms Vithura Jeyaruban meets the requirements for the grant of the visa, Mr Jeyaruban Velupillai and Miss Aathviga Jeyaruban would meet the requirements of cl 485.311 of Schedule 2 to the Regulations.

    DECISION

20. The Tribunal sets aside the decision of the delegate dated 30 April 2024 refusing to grant each applicant a Temporary Graduate (class VC) Temporary Graduate (Graduate Work) (subclass 485) visa and remits the visa applications back to the delegate for reconsideration with the following directions:

    · Ms Vithura Jeyaruban satisfies regulation 2.03AA of Part 2 of the Migration Regulations 1994 (Cth) for the purpose of PIC 4001 for the purpose of cl 485.216 of Schedule 2 to the Migration Regulations 1994 (Cth).

    · Mr Jeyaruban Velupillai and Miss Aathviga Jeyaruban would satisfy the requirements of cl 485.311 of Schedule 2 to the Migration Regulations 1994 (Cth) in the event that Vithura Jeyaruban is granted a Temporary Graduate (class VC) Temporary Graduate (Graduate Work) (subclass 485) visa.

    Nathan Goetz

    
    

    Member