Kumar (Migration)

[2022] AATA 936

Kumar (Migration) [2022] AATA 936 (13 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gaurav Kumar

REPRESENTATIVE:  Mr Rahul Gautam (MARN: 0955677)

CASE NUMBER:  2202144

HOME AFFAIRS REFERENCE(S):          BCC2021/383312

MEMBER:Alan McMurran

DATE:13 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 13 April 2022 at 12:33pm

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, s 65
Migration Regulations 1994, r 2.03AA, Schedule 2, cl 485.216

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 13 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(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.

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 because the applicant had not provided an Australian Federal Police (AFP) Complete Disclosure certificate as requested by the Department.

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 (the AFP) that provides evidence about whether or not he is a person who has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

9. At the time of the delegate’s decision, the applicant had not provided an AFP clearance certificate.

10. On 18 February 2022, the Tribunal requested the applicant provide a copy of an AFP National Police Certificate.

11. On 24 February 2022, the Tribunal documented as received from the applicant’s representative a copy of the applicant’s AFP National Police Certificate dated 22 March 2021, stating no disclosable court outcomes.

12. As the applicant has provided a statement from an appropriate authority, the Tribunal finds the applicant has now met the requirement in the regulation.

    Conclusion

13. On the basis of the above findings, the applicant 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