Joshi (Migration)

[2020] AATA 2607

Joshi (Migration) [2020] AATA 2607 (14 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Aishwarya Sunil Joshi

CASE NUMBER:  2005095

HOME AFFAIRS REFERENCE(S):          BCC2019/6146189

MEMBER:Denise Connolly

DATE:14 April 2020

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:

·Regulation 2.03AA.

Statement made on 14 April 2020 at 5:16pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate)) visa – AFP Complete Disclosure certificate provided – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
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 6 March 2020 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 20 November 2019. Visa Class VC contains Subclass 485. 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 the applicant.

3. The delegate refused to grant the visa because the applicant did not satisfy the criterion in r.2.03AA. The delegate found that the applicant did not meet cl.485.216 of Schedule 2 to the Regulations because she did not provide the information or the documents prescribed in r.2.03AA. Regulation 2.03AA applies in this case because the applicant is required to satisfy PIC 4001, which is one of the public interest criteria in cl.485.216(1).

4. The applicant has sought review of that decision and has now provided a Complete Disclosure - National Police Certificate issued by the Australian Federal Police on 11 November 2019.

5. In reaching its decision the Tribunal did not consider a hearing necessary, as it was able to find in favour of the applicant, on the material before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. One of the criteria for the grant of a Subclass 485 visa is cl.485.216 which requires that the applicant meets Public Interest Criteria including PIC 4001. Where a person is required to satisfy PIC 4001 for the grant of a visa, there are additional criteria prescribed under r.2.03AA that must be met for the grant of visa. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s criminal history. The additional criterion in r.2.03AA applies to all current applications. The issue in the present case is whether the applicant meets r.2.03AA.

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

8. Regulation 2.03AA(2) provides 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.

9. As part of the visa application, the applicant indicated she had applied to the Australian Federal Police for her criminal record check. She has provided to the Tribunal a copy of the receipt confirming she paid for the AFP check on 9 November 2019, in the 12 months before making the visa application.

10. On 31 March 2020 the applicant provided to the Tribunal her Complete Disclosure - National Police Certificate dated 11 November 2019. It records there are no disclosable outcomes for the applicant, born 4 September 1996.

11. As the applicant has complied with the request to provide an AFP certificate, the Tribunal finds she satisfies the criterion in r.2.03AA(2)(a).

12. While the delegate found that the applicant did not satisfy cl.485.216, this finding was made on the basis that the applicant did not provide an AFP Complete Disclosure - National Police Certificate and therefore did not meet r.2.03AA.

13. As the Complete Disclosure - National Police Certificate issued by the Australian Federal Police has been provided on review, the delegate is now able to assess whether the applicant meets PIC 4001 and cl.485.216.

14. The Tribunal remits the matter with a direction that the applicant satisfies r.2.03AA. The Minister is now able to consider whether the applicant meets cl.485.216 and the remaining criteria for the grant of a Subclass 485 visa.   

    DECISION

15. 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:

    ·Regulation 2.03AA.

    Denise Connolly
    Member