Mushtaq (Migration)

[2022] AATA 1053

Mushtaq (Migration) [2022] AATA 1053 (2 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nouman Mushtaq

CASE NUMBER:  2117399

HOME AFFAIRS REFERENCE(S):          BCC2020/2357472

MEMBER:Andrew George

DATE:2 February 2022

PLACE OF DECISION:  Darwin

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 02 February 2022 at 10:51pm

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; Schedule 4, PIC 4005

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 19 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 24 September 2020. Visa Class VC contains Subclass 485. 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 the applicant.

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 he 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. 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, such as a police force, that provides evidence about whether the person has a criminal history.

9. On 10 May 2021 and 21 July 2021, the Department sought an Australian Federal Police Complete Disclosure / Immigration Citizenship clearance from the applicant.

10. On 17 January 2022, the Tribunal received a National Police Certificate dated 25 November 2021 certifying that there are no disclosable Court outcomes. The Tribunal notes that it also has before it an earlier National Police Certificate dated 26 September 2020 that also certifies no disclosable Court outcomes.

11. 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).

12. 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

13. 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).

    Andrew George
    Member