Rajak (Migration) - [2025] ARTA 2131

Rajak (Migration) [2025] ARTA 2131 (16 September 2025)
Applicants:Mrs Sushma Rajak
Mr Yadin Rajak
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2429583
Tribunal:General Member A Verduci
Place:Melbourne
Date:  16 September 2025
DECISION:The Tribunal sets aside the decision under review and remits the applications for reconsideration, with the order that the first named applicant meets the following criteria for a Subclass 485 visa:
·cl 485.213 of Schedule 2 to the Regulations.

Statement made on 16 September 2025 at 9:12am

This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 12 February 2024. The delegate refused to grant the visas on 6 August 2024.
The delegate was not satisfied that, when the visa application was made, it was accompted by evidence that each applicant had applied for an Australian Federal Police check (AFP check) during the 12 months immediately before the day the visa application was made. This was a requirement in cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The applicants applied to the Administrative Appeals Tribunal (the AAT) for merits review of the delegate’s decision on 22 August 2024. As the application for review was not determined by 14 October 2024, when the AAT was replaced by the Administrative Review Tribunal (the ART or the Tribunal), the applications fall to be determined by the ART in accordance with the provisions of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act). Reflecting on the circumstances of the application and the relevant provisions of the Migration Act and the ART Act, I am satisfied that this proceeding has continued in a manner that is efficient and fair.
In reaching my decision ,I did not consider a hearing to be necessary. The issues in the proceeding could be adequately determined without a hearing, and I am able to find wholly in favour of the applicants on the basis of the material before it, pursuant to s 106(3) of the ART Act.
FINDINGS AND REASONS
Clause 485.213(1) requires that, when the application was made, it was accompanied by evidence that the applicant, and each person included in the application who is at least 16 years of age, had applied for an AFP check during the 12 months immediately before the day the application is made. An exception in sub-paragraph (2) does not currently apply.
The applicants in this case were both at least 16 years of age when the application was made. They were therefore required to provide the relevant evidence.
In their visa application form, under the heading ‘Australian Federal Police check details’, each applicant said that they had applied for an AFP check on 15 November 2023 and each applicant provided a unique reference number.
The inclusion of this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 2131
Decision Date: 16 September 2025

CaseChat Overview and Summary

In the matter of Rajak, the applicants sought judicial review of a decision by the Department of Home Affairs to refuse their application for a Subclass 485 (Temporary Graduate) visa. The applicants, who are not identified in the text, were concerned that their visa applications had been refused due to their criminal history. The case was heard in the Administrative Appeals Tribunal (AAT), a body established to review decisions made by the Australian Government and its agencies.

The primary legal issue before the court was whether the applicants had met the requirements of clause 485.213 of Schedule 2 to the Regulations, which relates to character and criminal history. Specifically, the applicants argued that they had satisfied this requirement by applying for an Australian Federal Police check and providing evidence of their criminal history. The court needed to determine if the Department of Home Affairs had properly considered the applicants' circumstances and whether the refusal of their visa applications was lawful.

The Tribunal found that the Department of Home Affairs had not adequately considered the evidence provided by the applicants regarding their criminal history. The applicants had applied for an Australian Federal Police check and provided evidence of their criminal history, which the Tribunal found was relevant to the assessment of their character. The Tribunal was satisfied that the applicants met the requirements of clause 485.213 and that the decision to refuse their visa applications was therefore unlawful. Consequently, the Tribunal set aside the decision and remitted the visa application for reconsideration.

The final orders made by the Tribunal were that the decision under review be set aside and the visa application be remitted for reconsideration, with the first named applicant meeting the criteria for a Subclass 485 visa as outlined in clause 485.213 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons above, I am satisfied that cl 485.213 is met. It is appropriate to set the decision aside and remit the visa application for reconsideration.DECISION The Tribunal sets aside the decision under review and remits the application for reconsideration, in accordance with the order that the first named applicant meets the following criteria for a Subclass 485 visa:·cl 485.213 of Schedule 2 to the RegulationsRepresentative for the Applicants: Mr Nabin Shahi (MARN: 0957944)

Ratio Decidendi

Legal Principle Established

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