Maninder Singh (Migration)

[2021] AATA 1656

Maninder Singh (Migration) [2021] AATA 1656 (22 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Maninder Singh
Mrs Manisha Rani
Miss Eknoordeep Kaur

CASE NUMBER:  2101729

HOME AFFAIRS REFERENCE(S):          BCC2020/1853306

MEMBER:R. Skaros

DATE:22 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled Work Regional (Provisional) (Class PS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 491 visa:

·Regulation 2.03AA(2)(a)

Statement made on 22 March 2021 at 9:02am

CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – character test – statement from an appropriate authority – Australian Federal Police (AFP) National Complete Disclosure Certificate – certificate from the Ministry of External Affairs, Consulate General of India – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 491.211; 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 to refuse to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 6 July 2020. The criteria for a Skilled Work Regional (Provisional) (Class PS) 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.491.211 of Schedule 2 of the Regulations requires the first named applicant (the applicant) to meet PIC4001. 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. The delegate refused to grant the visa on 22 August 2018 as the applicant did not provide evidence that he satisfied the character requirement, specifically an Australian Federal Police (AFP) National Complete Disclosure Certificate and a relevant police certificate from India which were requested by the Department.

6. The Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the material before it.

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 that provides evidence about whether or not the person has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

9. In letters dated 10 November 2020 and 10 December 2020 the Department requested that the applicant provide an AFP National Complete Disclosure Certificate and evidence from an appropriate authority in India which provided evidence about his criminal history, if any. The applicant did not provide the requested information, and as such the delegate was not satisfied that he met the requirements of r.2.03AA(2).

10. The applicant has now provided the Tribunal with an AFP National Complete Disclosure certificate dated 10 July 2020, which states that there were no disclosable court outcomes recorded against the applicant. He has also provided a certificate from the Ministry of External Affairs, Consulate General of India, dated 15 January 2021 which states there is no adverse information against the applicant which would render him eligible for immigration purposes.

11. The Tribunal also has before it an AFP National Complete Disclosure certificate dated 9 July 2020 for the second named applicant, which states that there were no disclosable court outcomes recorded against her, and a certificate from the Ministry of External Affairs, Consulate General of India, dated 15 January 2021 which states there is no adverse information against her which would render her eligible for immigration purposes.

12. On the basis of the evidence before it, the Tribunal is satisfied that the applicant has provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

13. The Tribunal notes that, although it does not appear that the Department requested them to do so, both the first and second named applicants have also provided Form 80 ‘Personal Particulars for Assessment Including Character Assessment) dated 15 December 2020.

14. Given the findings above, the appropriate course is to remit the applications for the first, second and third named applicants to the Minister to consider the remaining criteria for the visa.

    DECISION

15. The Tribunal remits the applications for Skilled Work Regional (Provisional) (Class PS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 491 visa:

    ·Regulation 2.03AA(2)(a).

    R. Skaros
    Senior Member