Kaushal (Migration)

[2022] AATA 4267

Kaushal (Migration) [2022] AATA 4267 (17 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hitesh Kaushal
Mrs Rajni Bala
Miss Doris Sharma

REPRESENTATIVE:  Mr Tejaskumar Patel (MARN: 1688211)

CASE NUMBER:  2212318

HOME AFFAIRS REFERENCE(S):          BCC2020/1223487

MEMBER:Nicole Burns

DATE:17 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·Regulation 2.03AA(2)

Statement made on 17 October 2022 at 1:01pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – copy of a National Police Certificate provided– no disclosable outcomes recorded against the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 2.03AA

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 (Cth) (the Act).

2. The applicants applied for the visas on 20 March 2020. The criteria for a Skilled (Provisional) (Class VC) visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: reg 2.03AA(1). In this case, cl 485.216(1) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

4. Regulation 2.03AA(2)(a) requires that, if requested, the applicant has provided a statement from a relevant authority in a country where the person resides or has resided that provides evidence about whether or not the person has a criminal history. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal may waive the requirement in reg 2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

5. The delegate refused to grant the visas on 15 August 2022 on the basis that the applicant did not meet reg 2.03AA because he failed to provide a police clearance certificate or other statement by an appropriate authority in Australia regarding his criminal history.  The other applicants were refused on the basis that they did not satisfy cl 485.311.

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

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

   consideration of claims and evidence

8. The issue in this case is whether the applicant has provided a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

9. On review the applicant submitted to the Tribunal a certificate from the Australian Federal Police dated 7 December 2021 which certifies that there are ‘no disclosable court outcomes’ recorded against the applicant’s name.

10. Given this, the Tribunal finds that the applicant satisfies the criterion in reg 2.03AA(2)(a) and thus meets reg 2.03AA.

11. The Tribunal remits the matter with a direction that the applicant satisfies reg 2.03AA. A delegate of the Minister is now able to assess whether the applicant meets PIC 4001 for the purposes of cl 485.216 and the remaining criteria for the grant of a Subclass 485 visa to the applicants.  

    decision

12. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    ·Regulation 2.03AA(2).

    Nicole Burns
    Member