Khatiwada (Migration)

[2019] AATA 2792

Khatiwada (Migration) [2019] AATA 2792 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Anita Khatiwada
Suman Neupane

CASE NUMBER:  1911137

HOME AFFAIRS REFERENCE:                BCC2018/6044134

MEMBER:Lilly Mojsin

DATE:12 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Skilled (Provisional) (Class VC) visa with the direction that the first named applicant satisfies PIC 4001 for the purposes of cl.485.216(a).

Statement made on 12 June 2019 at 2:05pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police check – Partial Disclosure National Police Certificate – Complete Disclosure AFP National Police Check – no discernible court outcomes – 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 Immigration on 15 April 2019 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant [applicant] applied for the visa on 9 January 2019.

3. On 5 March 2019 the applicant provided a Partial Disclosure National Police Certificate for the applicant.

4. The delegate refused to grant the visas because the applicant did not satisfy cl.485.216 of Schedule 2 to the Regulations as the applicant did not provide a Complete Disclosure AFP National Police Check regarding the applicant.

5. It is a requirement of the visa that the applicant for a Subclass 485 visa satisfies Public Interest Criterion (PIC) 4001. Regulation 2.03AA(2)(a) prescribes that where a person is required to satisfy PIC 4001 for the grant of a visa, they must provide a statement (howsoever described) provided by an appropriate authority in a country where they reside, or have resided, that provides evidence about whether or not the person has a criminal history (if such a statement has been requested by the Minister). The delegate found that the applicant had not provided the requested evidence and therefore did not meet the criteria in cl.485.216.

6. On 31 May 2019 the Tribunal received a Complete Disclosure AFP National Police Check dated 18 April 2019 for the applicant stating that that there were no discernible court outcomes in relation to the applicant.

7. Given that the requested AFP check has now been provided in relation to the applicant and revealed that there are no discernible court outcomes in relation to her, the Tribunal is satisfied that the applicant meets the requirements of r.203AA(2)(a). There is no evidence before the Tribunal that the Department requested a completed Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply. There is nothing to indicate that the applicant would fail to satisfy the Minister that she passes the character test and therefore the Tribunal finds that the applicant satisfies PIC 4001(b). Accordingly, the Tribunal is satisfied that the applicant satisfies PIC 4001 for the purposes of cl.485.216(a).

8. Accordingly the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

   DECISION

9. The Tribunal remits the application for Skilled (Provisional) (Class VC) visa with the direction that the first named applicant satisfies PIC 4001 for the purposes of cl.485.216(a).

   Lilly Mojsin
   Member