Singh (Migration)

[2023] AATA 4632

Singh (Migration) [2023] AATA 4632 (29 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lovepreet Singh

REPRESENTATIVE:  Mrs Umanga Nadisha Oberoi (MARN: 0850042)

CASE NUMBER:  2314853

HOME AFFAIRS REFERENCE(S):          BCC2022/713204

MEMBER:Amanda Mendes Da Costa

DATE:29 November 2023

PLACE OF DECISION:  Melbourne

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:

·Reg 2.03AA(2)(a) for the purpose of PIC 4001 and cl 485.216(1) of Schedule 2 to the Regulations.

Statement made on 29 November 2023 at 11.15am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – applicant has provided an AFP National Police Certificate – applicant satisfies reg 2.03AA(2)(a) for the purpose of PIC 4001 – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, 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 1 September 2023 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 22 March 2022. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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 visa because the applicant did not satisfy cl 485.216(1) of Schedule 2 to the Regulations because he did not meet the requirements of Public Interest Criterion 4001 in that he had not provided a police statement that provides evidence about whether he has a criminal history, as required by reg 2.03AA(2)(a).

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

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of cl 485.216(1) of Schedule 2 to the Regulations.

   Evidence relating to police checks

8. Clause 485.216(1) requires inter alia that the applicant satisfies Public Interest Criterion (PIC) 4001.

9. To assess a visa applicant against PIC 4001, reg 2.03AA applies as follows:

   (1)In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or 4002 for the grant of the visa, the criterion in subregulation (2) is prescribed.

   (2)If the Minister has requested the following documents or information, the person has provided the documents or information:

   (a)  a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

   (b)  a completed form 80.

   Note: For paragraph (a), an example of an appropriate authority is a police force.

   (3)The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.

10. In their decision, the delegate noted that although the applicant had provided the Department with a receipt of lodgement for an Australian Federal Police (AFP) National Police Certificate, he had not provided the Certificate, despite being requested to do so by the Department.

11. The Tribunal notes that the applicant has provided it with an AFP National Police Certificate dated 9 November 2023, which provides evidence about the applicant’s criminal history in Australia.

12. Therefore, the Tribunal considers that the applicant satisfies reg 2.03AA(2)(a) for the purpose of PIC 4001 and cl 485.216(1).

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

    DECISION

14. 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:

    ·reg 2.03AA(2)(a) for the purpose of PIC 4001 and cl 485.216(1) of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member