Subaraj (Migration)

[2024] AATA 2355

Subaraj (Migration) [2024] AATA 2355 (21 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Serin Subaraj

REPRESENTATIVE:  Dr Janet Ng Pownall

CASE NUMBER:  2414065

HOME AFFAIRS REFERENCE(S):          BCC2024/1372792

MEMBER:Member Nathan Goetz

DATE:21 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision dated 23 May 2024 refusing to grant the applicant a Subclass 485 visa and remits the visa application back to the delegate for reconsideration, with a direction the applicant satisfies the following criteria for the grant of the visa:

·Regulation 2.03AA(2)

Statement made on 21 June 2024 at 7:17pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history – Australian Federal Police titled Immigration/Citizenship - Australian Name Check provided upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.313; Schedule 4, Public Interest Criterion 4001; r 2.03

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a Skilled (Provisional) (Class VC) visa.

2. The applicant was represented in the review by registered migration agent 1797275.

   BACKGROUND AND VISA CRITERIA

3. The applicant is a male citizen of Singapore who was born on 25 May 1995 in that country and is presently located in Australia.

4. 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.

5. 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, cl 48.313 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).

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 reg 2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

7. The delegate refused to grant the visa on 23 May 2024 on the basis that the applicant did not meet reg 2.03AA because the applicant had not provided an Australian Federal Police (AFP) National Police Certificate/Immigration Citizenship certificate.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant has provided a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history.

   Has the applicant provided a statement from an appropriate authority?

10. When the applicant applied to the Tribunal for review of the decision, he provided a copy of a document dated 29 February 2024 issued by the Australian Federal Police titled Immigration/Citizenship – Australian Name Check Only’ advising that the applicant had no disclosable court outcomes.

11. An accompanying written submission by the representative noted that the applicant had provided the delegate with a receipt for payment of obtaining the AFP document, but had not provided the document itself. The representative asserted that this was the an oversight on behalf of the applicant.

12. The applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

    CONCLUSION

13. On the basis of the above findings, the applicant satisfies reg 2.03AA(2).

    DECISION

14. The Tribunal sets aside the decision dated 23 May 2024 refusing to grant the applicant a Subclass 485 visa and remits the visa application back to the delegate for reconsideration, with a direction the applicant satisfies the following criteria for the grant of the visa:

    ·Regulation 2.03AA(2)

    Nathan Goetz
    Member