Singh (Migration)

[2022] AATA 4085

Singh (Migration) [2022] AATA 4085 (21 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manjeet Singh

REPRESENTATIVE:  Mr Rahul Gautam (MARN: 0955677)

CASE NUMBER:  2208404

HOME AFFAIRS REFERENCE(S):          BCC2021/1171704

MEMBER:Wan Shum

DATE:21 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.

Statement made on 21 July 2022 at 2:19pm

CATCHWORDS  
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – character test – statement from an appropriate authority – Australian Federal Police (AFP) National Police Certificate – no disclosable court outcomes – decision under review remitted 

LEGISLATION 
Migration Act 1958 (Cth), ss 65, 360 
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 485.216; Schedule 4, PIC 4001

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 23 May 2022 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 June 2021. 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 delegate refused to grant the visa on the basis that the applicant did not satisfy the criterion in reg 2.03AA.

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

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 31 March 2022 requesting a copy of the Australian Federal Police (AFP) National Police Certificate as the receipt provided with the application was insufficient. It appears that a copy was not provided before the decision was made.

8. On review, the Tribunal was provided with a copy of an ‘Immigration/Citizenship Australia – name check only’ certificate issued by the AFP dated 27 June 2022 which confirms that he had no disclosable court outcomes recorded against the names he has been known by.

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.

10. The Tribunal remits the matter with a direction that the applicant satisfies reg 2.03AA. 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.

    Wan Shum
    Member