Kumar (Migration)

[2021] AATA 2088

Kumar (Migration) [2021] AATA 2088 (20 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Manjeet Kumar
Mrs Poonam Maan
Miss Riyanshi
Master Rishaan Gahlawat

CASE NUMBER:  2105420

HOME AFFAIRS REFERENCE(S):          BCC2020/1778612

MEMBER:Phoebe Dunn

DATE:20 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for GK – Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

·Regulation 2.03AA(2) in relation to PIC 4001 for the purposes of cl 482.217(1) of the Regulations.

Statement made on 20 May 2021 at 5:40pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 Temporary Skill Shortage – criminal history – Police Clearance Certificate provided upon review – members of the family unit – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 482.217, 482.312; Schedule 4, Public Interest Criterion 4001; r 2.03

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 GK – Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 22 June 2020. The criteria for a GK – Temporary Skill Shortage (Class GK) 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 482.217 of Schedule 2 to the Regulations requires the applicant to meet PIC 4001 and 4002. The primary visa applicant (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. On 15 July 2020, a delegate of the Minister requested that the applicant provide a certificate from an appropriate authority in India on the basis that the applicant had lived in India for a cumulative period of 12 months or more, over the previous 10 years, since turning 16. The delegate refused to grant the visas on 8 April 2021 on the basis that the applicant did not meet reg 2.03AA because the applicant failed to provide the requisite statement from a relevant authority in India about whether or not the applicant had a criminal history and reg 2.03AA(3) did not apply.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. On 15 January 2019, the Tribunal received the following documents stating there is no adverse information about the applicant or the second named applicant:

   a.Police Clearance Certificate issued 9 February 2021 from the Government of India, Ministry of External Affairs, for the applicant; and

   b.Police Clearance Certificate issued 9 February 2021 from the Government of India, Ministry of External Affairs for the second named visa applicant.

9. The Tribunal notes that the applicant has previously provided a National Police Certificate from the Australian Federal Police for the purposes of PIC 4001 and reg 2.03AA(2)(a).

10. In light of the new evidence received, the Tribunal is satisfied that the applicant has now provided the requisite Police Certificates from appropriate authorities where the applicant has resided which provided evidence as to whether or not the applicant has a criminal history.  The applicant therefore meets the requirements of reg 2.03AA(2).

11. Accordingly, the Tribunal considers the appropriate course is to remit the matter for reconsideration of the remaining criteria for a Subclass 482 visa.

12. The delegate made a decision that the secondary applicants did not satisfy cl 482.312, which requires that they are a member of the family unit of a person (the primary applicant) who holds a Subclass 482 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

13. The Tribunal is unable to make a direction that the secondary applicants meet this criterion, because at the time of the Tribunal’s decision, the applicant does not hold a Subclass 482 visa.  The Tribunal refers the case of the secondary applicants to the Department to consider their applications afresh.

    Conclusion

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

    DECISION

15. The Tribunal remits the applications for GK – Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

    ·Regulation 2.03AA(2) in relation to PIC 4001 for the purposes of cl 482.217(1) of the Regulations.

    Phoebe Dunn
    Member