Sunda (Migration)

[2020] AATA 5780

Sunda (Migration) [2020] AATA 5780 (14 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vikas Kumar Sunda

CASE NUMBER:  1912375

DIBP REFERENCE(S):  BCC2018/2839292

MEMBER:R. Skaros

DATE:14 December 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)(a).

Statement made on 14 December 2020 at 7:24am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – evidence about criminal history – Australian Federal Police National Complete Disclosure Certificate – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.216, r 2.03; Public Interest Criterion 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 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 29 July 2018. 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.

3. 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). In this case, cl.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 r.2.03AA(2).

4. 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.

5. The delegate refused to grant the visa on 1 May 2019 on the basis that the applicant did not meet r.2.03AA because he did not provide the requested Australian Federal Police (AFP) National Complete Disclosure Certificate to the Department.

6. The Tribunal did not consider a hearing to be necessary as it was able to remit the matter on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. In this case, the applicant did not provide the requested AFP National Complete Disclosure Certificate to the Department despite being requested to do so. For this reason, the delegate was not satisfied that the applicant met r.2.03AA (2).

10. The applicant has now provided the Tribunal with a copy of an AFP National Complete Disclosure Certificate dated 8 October 2020. The certificate indicates that the applicant has been charged with a number of serious offences which were alleged to have occurred on 10 February 2020. The applicant has not been tried for these offences and a court date is yet to be set.

11. The Tribunal notes that while the charges raise concerns about whether the applicant satisfies the character requirements, this is not the issue before the Tribunal. Furthermore, the requirement relating to character is not one that can be assessed by the presently constituted Tribunal. 

12. The only issue before this Tribunal is whether the applicant has provided a statement from the appropriate authority about whether or not he has a criminal history. The applicant has now provided the requested statement and therefore meets r.2.03AA(2)(a).

13. In the circumstances, the Tribunal will remit the matter to the Department for further assessment and determination in relation to the remaining requirements for the grant of the visa.

    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:

    ·Regulation 2.03AA(2)(a).

    R. Skaros
    Senior Member