Needhisha Raj (Migration)

[2022] AATA 2173

Needhisha Raj (Migration) [2022] AATA 2173 (10 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Needhisha Raj
Mr Midhun Raj
Master Yetin Ihish Raj

REPRESENTATIVE:  Mrs Pratibha Sharma (MARN: 0965020)

CASE NUMBER:  2202343

HOME AFFAIRS REFERENCE(S):          BCC2021/1331555

MEMBER:Kira Raif

DATE:10 June 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·Regulation 2.03AA(2)

Statement made on 10 June 2022 at 12:03pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate)) visa – copy of a National Police Certificate provided – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA

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 (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 29 June 2021. The criteria for a Skilled (Provisional) (Class VC) 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, c. 485.216 of Schedule 2 of the Regulations requires 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 visas on 9 February 2022 on the basis that the applicant did not meet reg 2.03AA because the applicant did not provide the AFP certificate. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Has the applicant provided a statement from an appropriate authority?

6. 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.

7. In their submission to the Tribunal the applicants refer to their interactions with their previous migration agent and the reasons the AFP certificates were not previously provided. The applicants provided to the Tribunal the AFP certificates. 

8. As the applicants have provided a statement from an appropriate authority, they therefore meets reg 2.03AA(2)(a).

   Conclusion

9. On the basis of the above findings, the applicant meets reg 2.03AA(2).

   DECISION

10. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    ·Regulation 2.03AA(2).

    Kira Raif
    Senior Member