Patel (Migration)

[2020] AATA 1456

Patel (Migration) [2020] AATA 1456 (23 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Dhvaniben Dharmeshkumar Patel
Mr Dharmeshkumar Bhagwandas Patel

CASE NUMBER:  1822370

HOME AFFAIRS REFERENCE(S):          BCC2018/1230285

MEMBER:Alan McMurran

DATE:23 April 2020

PLACE OF DECISION:  Sydney

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

·cl.485.216(1) of Schedule 2 to the Regulations in respect of the first named applicant; and

·cl.485.216(3) of Schedule 2 to the Regulations in respect of the second named applicant; and

·Regulation 2.03AA(2)(a)

Statement made on 23 April 2020 at 9:50am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –– criminal history – police certificates from Australia and India provided to tribunal – no disclosable court outcomes – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 2, cl 485.216(1), (3), Schedule 4, criterion 4001

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged for review of a decision made by a delegate of the Minister for Home Affairs on 27 July 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 14 March 2018. 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 (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. The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.485.216 (1) of Schedule 2 to the Regulations, because the first named applicant did not satisfy public interest criterion 4001 and regulation 2.03 AA. The applicant had not provided a Complete Disclosure National Police Certificate issued by the Australian Federal police, being an appropriate local authority in Australia, a country where the applicants reside or have resided, and as to whether the first named applicant has a criminal history.

4. The decision noted that the second named applicant (spouse of the first named applicant) had provided a Standard Disclosure National Police Clearance Certificate with the correct date of birth.

5. The Tribunal has had regard to the documents and information on its case file and provided by the Department. On the information now before it, the Tribunal considers it can decide the review on that information and without going to a hearing.[1]

   [1] section 360 (2) a)

6. The applicants were represented in relation to the review by their registered migration agent.

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 the present case is whether the applicants satisfy clause 485.216 (1) which requires the applicants meet the requirements of Public Interest Criterion 4001, and Regulation 2.03AA(2)(a).

   Evidence relating to police checks

9. Clause 485.216 requires that the applicant satisfies public interest criteria 4001 which requires that a person satisfies the Minister that the person passes the character test.

10. On 19 February 2020, the applicant provided the following documents to the Tribunal:

    a.Australian National Police Certificate from the Australian Federal police reference 6270169PC; and

    b.Police Clearance Certificate from the Government of India, Ministry of External Affairs, Consulate General in Perth; and

    c.Police certificates from each of those entities in respect of the second named applicant;

11. The Tribunal is satisfied that each of the certificates disclosed for the first and second named applicant shows there are no disclosable court outcomes relating to the police checks recorded against either applicant.

12. The Tribunal finds the applicant satisfies the requirements of PIC 4001 and Regulation 2.03 AA(2)(a). The Tribunal finds the second named applicant satisfies clause 485.216(3) and also meets the requirements of PIC 4001 and Regulation 2.03 AA(2) (a).

13. Therefore, the applicants satisfy cl.485.216.

14. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

15. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that applicants meet the following criteria for a Subclass 485 visa:

    ·cl.485.216(1) of Schedule 2 to the Regulations, in respect of the first-named applicant; and

    ·cl.485.216(3) of Schedule 2 to the Regulations, in respect of the second-named applicant; and

    ·Regulation 2.03 AA (2)(a)

    Alan McMurran
    Member