KC (Migration)

[2022] AATA 1893

KC (Migration) [2022] AATA 1893 (15 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ankit KC

REPRESENTATIVE:  Mr Sanjeev Prasad Pandey (MARN: 1172267)

CASE NUMBER:  2202394

HOME AFFAIRS REFERENCE(S):          BCC2021/1264996

MEMBER:Alan McMurran

DATE:15 April 2022

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(2)

Statement made on 15 April 2022 at 1:13pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history – statement by an appropriate authority – AFP Complete Disclosure/Immigration Citizenship clearance certificate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; 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 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 2021. 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 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.

5. 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, where requested.

6. The delegate refused to grant the visa on 7 February 2022 on the basis that the applicant did not meet reg 2.03AA(2) because the applicant had not provided a Police clearance certificate provided by an appropriate authority in Australia being a country where the applicant resides, that provides evidence about whether or not the applicant has a criminal history (as requested).

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

   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 10 March 2022, the applicant’s registered migration agent provided a copy of an AFP National Police Certificate dated 15 February 2022.

10. The Tribunal has checked the available information and finds it is satisfied that the applicant has provided a copy of an AFP Complete Disclosure/Immigration Citizenship clearance  certificate.

11. As the applicant has provided a statement from an appropriate authority, the Tribunal finds that the applicant therefore meets reg 2.03AA(2)(a).

    Conclusion

12. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in reg 2.03AA(2 (b) does not apply.

13. On the basis of the above findings, the applicant now meets reg 2.03AA(2).

    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:

    ·Regulation 2.03AA(2).

    Alan McMurran
    Member