Rijal (Migration)

[2022] AATA 2727

Rijal (Migration) [2022] AATA 2727 (29 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandesh Rijal

REPRESENTATIVE:  Mr Narayan Prasad Humagain (MARN: 1802195)

CASE NUMBER:  2210107

HOME AFFAIRS REFERENCE(S):          BCC2021/821727

MEMBER:Wan Shum

DATE:29 July 2022

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 29 July 2022 at 10:30am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – character test – criminal history statement – AFP national police certificate provided to tribunal – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 2, cl 485.216

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 8 July 2022 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 11 January 2022. 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) and additional criteria may apply. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criterion in reg 2.03AA(2).

3. The applicant sought review of that decision and provided a copy of a National Police Certificate issued by the Australian Federal Police (AFP).

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 on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant meets reg 2.03AA, and in particular subregulation (2) which needs to be met in cases where a person is required to satisfy Public Interest Criteria (PIC) 4001 or PIC 4002 for the grant of a visa, unless the Minister has decided to waive the requirement. The additional criterion in reg 2.03AA applies to all current applications and requires an applicant to provide documentation or information relating to the applicant’s criminal history if requested by the Minister: reg 2.03AA(2).

6. Regulation 2.03AA(2) is prescribed in this case because cl 485.216(1) requires that the applicant meet various PIC for the grant of a Subclass 485 visa, which includes PIC 4001.

7. The Department wrote to the applicant on 8 June 2022 requesting a copy of the AFP National Police Certificate specifically stating that certificate provided was “incorrect” and providing instructions for obtaining an ‘Immigration/Citizenship Australia’ certificate. A certificate meeting those requirements was not provided before the decision was made.

8. On review, the Tribunal has been provided with a copy of an ‘Immigration/Citizenship Australia – name check only’ certificate issued by the AFP dated 15 February 2022.

9. The Tribunal finds that the applicant satisfies the criterion in reg 2.03AA(2)(a) based on the AFP certificate provided on review and thus meets reg 2.03AA(2).

10. The Tribunal remits the matter with a direction that the applicant satisfies reg 2.03AA(2). A delegate of the Minister is now able to assess whether the applicant meets PIC 4001 for the purposes of cl 485.216 and the remaining criteria for the grant of a Subclass 485 visa.  

    DECISION

11. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·Regulation 2.03AA(2).

    Wan Shum
    Member