Krakue (Migration)

[2022] AATA 1926

Krakue (Migration) [2022] AATA 1926 (24 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Caleb Krakue

CASE NUMBER:  2112612

HOME AFFAIRS REFERENCE(S):          BCC2020/179870

MEMBER:Andrew George

DATE:24 January 2022

PLACE OF DECISION:  Darwin

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(1) of Schedule 2 to the Regulations.

Statement made on 24 January 2022 at 5:28pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history – statement from an appropriate authority – Australian Federal Police Complete Disclosure clearance – Criminal Check from the Ghana Police Service – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
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 on 6 September 2021 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 26 January 2020. 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 (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. Clause 485.216(1) of Schedule 2 requires the applicant to meet Public Interest Criterion (PIC) 4001 regarding character testing. Regulation 2.03AA then applies where a person is required to satisfy PIC 4001: reg 2.03AA(1). 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 an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether 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 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 reg 2.03AA(2)(a) and therefore PIC 4001.

6. 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.

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, such as a police force, that provides evidence about whether the person has a criminal history.

9. The applicant presently resides in Australia.

10. On 12 March 2020, the Department sought an Australian Federal Police Complete Disclosure clearance from the applicant.

11. There is no evidence before the Tribunal of a request for a Form 80 from the applicant by the Department.

12. On 17 November 2021, the Tribunal received a National Police Certificate dated 27 October 2021 certifying that there are no disclosable Court outcomes. On 20 December 2021, the Tribunal received a Criminal Check from the Ghana Police Service dated 15 December 2021 stating that the applicant does not have a criminal record.

13. The applicant has now provided a statement from an appropriate authority in the country in which he resides and therefore meets reg 2.03AA(2)(a). From this statement, the Tribunal is satisfied that there is nothing to indicate that the applicant would fail to satisfy the Minister that the applicant passes the character test: PIC 4001(b).

14. On the basis of the above findings, the Tribunal is satisfied that reg 2.03AA(2) and PIC 4001 is met. Accordingly, the Tribunal finds that the applicant satisfies cl 485.216(1).

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

    DECISION

16. 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(1) of Schedule 2 to the Regulations.

    Andrew George
    Member