Sobti (Migration)

[2024] AATA 4027

Sobti (Migration) [2024] AATA 4027 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abhishek Sobti

REPRESENTATIVE:  Mr Sourabh Aggarwal

CASE NUMBER:  2430085

HOME AFFAIRS REFERENCE(S):          BCC2024/1365186

MEMBER:Member Nathan Goetz

DATE:10 October 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision dated 7 August 2024 refusing to grant the applicant a Skilled (Provisional) (Class VC) visa and remits the visa application back to the delegate for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·Regulation 2.03AA(2)(a)

Statement made on 10 October 2024 at 9:44pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history – Australian Federal Police National Police Certificate provided upon review – decision under review set aside  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.216; Schedule 4, Public Interest Criterion 4001; r 2.03AA

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 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 is represented in the review by registered migration agent 1462159.

   BACKGROUND

3. The applicant applied for the visa on 28 February 2024. The criteria for a Skilled (Provisional) (Class VC) visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

4. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: reg 2.03AA(1). In this case, clause 485.216 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

5. 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.

6. On 8 July 2024 the delegate wrote to the applicant and requested the applicant provide a new Australian Federal Police National Police Certificate within 28 days because the document provided with the visa application was dated 22 July 2022 and was expired.

7. On 7 August 2024 the delegate refused to grant the visa on the basis that the applicant did not meet reg 2.03AA because he had not provided the police certificate as requested.

8. On 26 August 2024 the application for review of the decision was lodged with the Tribunal.

9. On 16 September 2024 the applicant provided the Tribunal with an Australian Federal Police National Police Certificate dated 12 September 2024 which identified that the applicant had disclosable court outcomes.

   CONSIDERATION AND CONCLUSION

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

    Has the applicant provided a statement from an appropriate authority?

11. The issue is not whether the applicant has a criminal history in Australia or not. The issue is whether the applicant has provided a statement from an appropriate authority demonstrating whether or not he has a criminal history.

12. The applicant has now provided the police clearance certificate as requested by the delegate. Therefore, the applicant satisfies reg 2.03AA(2)(a).

13. It is regrettable that the applicant did not provide the certificate to the delegate within the timeframe requested.

    DECISION

14. The Tribunal sets aside the decision dated 7 August 2024 refusing to grant the applicant a Skilled (Provisional) (Class VC) visa and remits the visa application back to the delegate for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·Regulation 2.03AA(2)(a)

    Nathan Goetz
    Member