Poudel (Migration)

[2023] AATA 4347

Poudel (Migration) [2023] AATA 4347 (7 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Suraj Poudel

REPRESENTATIVE:  Mr Shishir Gautam (MARN: 2117284)

CASE NUMBER:  2115692

HOME AFFAIRS REFERENCE(S):          BCC2020/1168778

MEMBER:Amanda Mendes Da Costa

DATE:7 December 2023

PLACE OF DECISION:  Melbourne

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:

·Reg 2.03AA(2)(a) for the purpose of PIC 4001 and cl 485.216(1) of Schedule 2 to the Regulations.

Statement made on 7 December 2023 at 10.09am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history – Australian Federal Police Digital National Police Certificate provided upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 485.216; Schedule 4, Public Interest Criterion 4001; r 2.03

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 21 October 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 14 March 2020. 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 (Cth) (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 visa because the applicant did not satisfy cl 485.216(1) of Schedule 2 to the Regulations because he did not meet the requirements of Public Interest Criterion 4001 in that he had not provided a police statement that provides evidence about whether he has a criminal history, as required by reg 2.03AA(2)(a).

4. 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.

5. The applicant was represented in relation to the review.

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 the present case is whether the applicant meets the criteria in cl 485.216(1) of Schedule 2 to the Regulations.

   Evidence relating to police checks

8. Clause 485.216(1) requires inter alia that the applicant satisfies Public Interest Criterion (PIC) 4001.

9. To assess a visa applicant against PIC 4001, reg 2.03AA applies as follows:

   (1)In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or 4002 for the grant of the visa, the criterion in subregulation (2) is prescribed.

   (2)If the Minister has requested the following documents or information, the person has provided the documents or information:

   (a)  a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history; and

   (b)  a completed form 80.

   Note: For paragraph (a), an example of an appropriate authority is a police force.

   (3)The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.

10. The Tribunal notes that the applicant has provided it with an AFP Digital National Police Certificate dated 20 November 2023, which indicates no disclosable court outcomes in Australia for the applicant.  

11. The Tribunal considers that this Certificate satisfies reg 2.03AA(2)(a) for the purpose of PIC 4001 and cl 485.216(1).

12. Therefore, the applicant satisfies cl 485.216(1).

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

    DECISION

14. 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:

    · Reg 2.03AA(2)(a) for the purpose of PIC 4001 and cl 485.216(1) of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member