Kalyan (Migration)

[2024] AATA 1113

Kalyan (Migration) [2024] AATA 1113 (9 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amandeep  Kalyan

REPRESENTATIVE:  Mrs Mandeep Kaur (MARN: 1462851)

CASE NUMBER:  2208876

HOME AFFAIRS REFERENCE(S):          BCC2019/1297457

MEMBER:Amanda Mendes Da Costa

DATE:9 May 2024

PLACE OF DECISION:  Melbourne

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 485.216 of Schedule 2 to the Regulations.

Statement made on 9 May 2024 at 1.27pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history – Indian Police Clearance Certificate provided upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 485.216; 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 decision made by a delegate of the Minister for Home Affairs on 17 June 2022 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 March 2019. 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 (Cth) (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 visa because the applicant did not satisfy cl 485.216(1) of Schedule 2 to the Regulations because he did not meet the requirements of PIC 4001 of Schedule 4 to the Regulations.

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 applicant based on the material before it, pursuant to s.360(2)(a) of the Act.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the criteria in cl 485.216(1) of Schedule 2 to the Regulations.

   Evidence relating to police checks

8. Clause 485.216(1) requires that an applicant satisfies (inter alia) Public Interest Criteria (PIC) 4001, which requires either:

   (a)the person satisfies the Minister that the person passes the character test; or

   (b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

   (c)the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test;

   (d)The Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

9. As the applicant is required to satisfy PIC 4001 for the grant of the visa, reg 2.03AA applies.  This regulation states:

   (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 the 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 from 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.

10. On 10 May 2022 the Department requested the applicant to provide an Overseas Police Clearance Certificate from each country where he has lived for a total of 12 months or more in the last 10 years as evidence that he satisfies the character requirements. The applicant did not respond to this request.

11. However, the applicant has provided the Tribunal with a Police Clearance Certificate (dated 13 December 2023) and issued by the Ministry of External Affairs, Government of India.  This Certificate shows that there is no adverse information against the applicant which would render him ineligible to Immigration purposes.

12. Accordingly, the Tribunal finds that the applicant satisfies the requirements of PIC 4001 for the purpose of cl 485.216(1) and therefore meets cl 485.216.

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

    DECISION

14. 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 485.216 of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member