Kunwar (Migration)

[2022] AATA 395

Kunwar (Migration) [2022] AATA 395 (21 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anuz Kunwar

REPRESENTATIVE:  Mr Deepak Kumar Agrawal (MARN: 1464159)

CASE NUMBER:  2201822

HOME AFFAIRS REFERENCE(S):          BCC2021/1081737

MEMBER:Wan Shum

DATE:21 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·Regulation 2.03AA.

Statement made on 21 February 2022 at 3:16pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history statement – AFP certificate provided to tribunal – no disclosable court outcomes – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 2.03AA(1), (2)(a), Schedule 2, cl 485.216(1), Schedule 4, criterion 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). The applicant applied for the visa on 13 May 2021. The delegate refused to grant the visa on 9 February 2022.

2. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criterion in reg 2.03AA because the applicant did not provide the information or the documents prescribed in reg 2.03AA.

3. The applicant sought review of that decision and provided a copy of a National Police Certificate issued by the Australian Federal Police.

4. 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 on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant meets reg 2.03AA.

6. This is relevant to consideration of whether Public Interest Criterion 4001 is met. Clause 485.216(1) requires that the applicant meet various Public Interest Criteria (PIC) for the grant of a Subclass 485 visa, which includes PIC 4001. Where a person is required to satisfy PIC 4001 for the grant of a visa, there are additional criteria prescribed under reg 2.03AA that must be met for the grant of visa. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s criminal history. The additional criterion in reg 2.03AA applies to all current applications.  

7. Regulation 2.03AA(1) states that in addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or PIC 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

8. Regulation 2.03AA(2) provides that if the Minister has requested the following documents or information, the person has provided the documents or information:

   (a)  a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

   (b)  a completed approved form 80.

9. The Department wrote to the applicant on 30 September 2021 requesting a copy of the Australian Federal Police (AFP) clearance National Police Check. The certificate was not provided before the decision was made.

10. The applicant has provided a copy of his complete disclosure certificate from the AFP dated 12 May 2021 which confirms that he had no disclosable court outcomes recorded against her name.

11. The Tribunal finds that the applicant satisfies the criterion in reg 2.03AA(2)(a) based on the AFP certificate provided and thus meets reg 2.03AA.

12. The Tribunal remits the matter with a direction that the applicant satisfies reg 2.03AA. A delegate of the Minister is now able to assess whether the applicant meets PIC 4001 for the purposes of cl 485.216 and the remaining criteria for the grant of a Subclass 485 visa.  

    DECISION

13. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·Regulation 2.03AA.

    Wan Shum
    Member