Saini (Migration)

[2020] AATA 2624

Saini (Migration) [2020] AATA 2624 (18 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kunal Saini

CASE NUMBER:  2005712

DIBP REFERENCE(S):  BCC2019/6207079

MEMBER:Kira Raif

DATE:18 June 2020

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 18 June 2020 at 6:11am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – criminal history check – AFP certificate not provided with application – complete disclosure certificate provided on review – no disclosable court outcomes – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA(2)(a)

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 Immigration to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 November 2019. The delegate refused to grant the visa on 5 March 2020 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide his AFP certificate.

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

   Relevant law

4. The criteria for a Skilled (Provisional) (Class VC) visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

5. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: r.2.03AA(1).

6. Regulation 2.03AA(2)(a) requires that, if requested, the applicant has provided a statement from a relevant authority in a country where the person resides or has resided that provides evidence about whether or not the person has a criminal history. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal may waive the requirement in r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

   Has the applicant provided a statement from an appropriate authority?

7. The primary decision record indicates that the applicant did not provide his AFP Certificate with the application. The applicant provided additional evidence to the Tribunal which includes the AFP Complete Disclosure National Police Certificate dated 28 February 2020 which shows no disclosable court outcomes in relation to the applicant.

8. As the applicant has provided a statement from an appropriate authority, he therefore meets r.2.03AA(2)(a).

   Conclusion

9. On the basis of the above findings, the applicant meetsr.2.03AA(2).

   DECISION

10. 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).

    Kira Raif
    Senior Member