Sahay (Migration)

[2024] AATA 3145

Sahay (Migration) [2024] AATA 3145 (21 August 2024)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shrey Sahay
Mrs Mahima Panwar

REPRESENTATIVE:  Mr Narinder Singh Sahi (MARN: 0641530)

CASE NUMBER:  2418827

HOME AFFAIRS REFERENCE(S):          BCC2024/1493748

MEMBER:Sheridan Aster

DATE:21 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 21 August 2024 at 10:20am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – criminal history statement – AFP general overseas employment check provided with application – departmental policy requires complete disclosure certificate – regulations require ‘an AFP check’ – any form of check sufficient to satisfy requirement – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 485.213(1), 485.311

CASE
Singh v MICMSMA [2021] FCCA 905

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 4 June 2024 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 5 March 2024. Visa Class VC contains Subclass 485. 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 visas because the first named applicant (the applicant) did not satisfy cl 485.213 of Schedule 2 to the Regulations because they did not provide the specific Australian Federal Police clearance requested by the Department.

4. The applicants were represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Clause 485.213(1) requires that when the visa application was made, it was accompanied by evidence that the applicant, and each person included in the application who is at least 16, had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made. Clause 485.213(1) does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: cl 485.213(2).

7. Clauses 485.232 and 485.233 relate to applicants who held a Subclass 485 Post Study Work visa at the time they applied for a second Subclass 485 visa. At the time of application, the applicant did not hold a Subclass 485 Post Study Work visa. Therefore, he must meet the requirements of cl 485.213(1).

8. The applicant answered ‘Yes’ to the following question on his visa application form:

   Have all applicants aged 16 years or over, applied in the last 12 months to the Australian Federal Police for a check of criminal records?

9. He then provided the reference numbers and date of the applications for Australian Federal Police checks made by himself and his wife, the second named applicant. The applications were made on 1 March 2024, which falls during the 12 months immediately before the day the visa application was made.

10. Departmental Policy requires the Australian Police check to be in the form of a Complete Disclosure Certificate. However, cl 485.213 stipulates only ‘an Australian Federal Police check’.[1] For this reason, evidence an applicant had applied for any form of an Australian Federal Police check is sufficient to satisfy cl 485.213.[2]

    [1] Singh v MICMSMA [2021] FCCA 905 at [38].

    [2] Singh v MICMSMA [2021] FCCA 905 at [35] and [38].

11. In this case, the applicants originally applied for and provided Overseas Employment – General Employment Australian Federal Police checks. Nevertheless, this is sufficient to meet the requirements of cl 485.213(1). Therefore, the applicant satisfies cl 485.213 of Schedule 2 to the Regulations.

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

13. The second named applicant was refused a visa because she was not the member of a family unit of a person who holds a Subclass 485 visa on the basis of satisfying the primary criteria: cl 485.311. Her application will be reconsidered with that of the primary applicant.

    DECISION

14. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth).

    Sheridan Aster
    Member