Lim (Migration)

[2022] AATA 292

Lim (Migration) [2022] AATA 292 (7 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Han Sheng Lim

CASE NUMBER:  2119458

HOME AFFAIRS REFERENCE(S):          BCC2021/338795

MEMBER:Namoi Dougall

DATE:7 February 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)(a).

Statement made on 07 February 2022 at 3:36pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history – Australian National Police Certificates provided upon review – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 485.216, r 2.03; Schedule 4, Public Interest 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 on 29 November 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 8 March 2021. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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 of Schedule 4 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.

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 she 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. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. On 9 September 2021, the Department sought an Australian Federal Police Complete Disclosure / Immigration Citizenship clearance from the applicant.

11. On 5 January 2022, the Tribunal received National Police Certificates for both applicants dated 23 December 2021 certifying that there are no disclosable Court outcomes.

12. 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).

13. There is insufficient material available to the Tribunal in the Departmental File to make wider findings regarding PIC 4001, 4002, 4003, 4004, 4005, 4010, 4020, 4021, and cl 485.216(1). Accordingly, the preferable course is to remit the visa application to the Minister to consider the remaining criteria.

    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)(a).

    Namoi Dougall
    Member