NARESH KUMAR (Migration)

[2018] AATA 1813

NARESH KUMAR (Migration) [2018] AATA 1813 (27 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  NARESH KUMAR

CASE NUMBER:  1806727

DIBP REFERENCE(S):  BCC2017/4968134

MEMBER:Denise Connolly

DATE:27 April 2018

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).

Statement made on 27 April 2018 at 3:44pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Criminal history – National Police Certificate Complete Disclosure – Decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA, Schedule 2 cl 485.216, 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 Immigration to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 27 December 2017. The criteria for a Skilled (Provisional) (Class VC) visa are set out in Schedule 2 to the Migration Regulations 1994 (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: r.2.03AA(1). In this case, cl.485.216 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in r.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 r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.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 27 February 2018 on the basis that the applicant did not meet r.2.03AA(2)(a) because the applicant had provided a Standard Disclosure from the Australian Federal Police (AFP), not a Complete Disclosure as requested.

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 Complete Disclosure from the AFP about whether the applicant has a criminal history for the purposes of the delegate undertaking the character test.

8. After making the visa application the applicant provided a copy of a National Police Certificate - Standard Disclosure, dated 28 December 2017.

9. Based on a letter on the Department’s file dated 23 January 2018 the Tribunal finds the delegate made a request for the applicant to provide a Complete Disclosure from an appropriate authority, the AFP, in a country where the applicant resides or has resided, that is Australia. In response the applicant provided the same document referred to above, the Standard Disclosure. The delegate refuse to grant the visa on the basis that the applicant had not provided the document sought as required by r.2.03AA(2)(a).

10. The applicant has now provided to the Tribunal a copy of a National Police Certificate - Complete Disclosure dated 6 March 2018 issued by the AFP. It records that there are no disclosable court outcomes recorded against the applicant. This is the document sought in the Department’s request dated 23 January 2018. The Tribunal has not had this document verified.

11. The applicant has provided a statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

12. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

    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).

    Denise Connolly
    Member