Surana (Migration)

[2021] AATA 5515

Surana (Migration) [2021] AATA 5515 (16 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shivani Manoj Surana

REPRESENTATIVE:  Mr Yatharth Bharadwaj (MARN: 1680071)

CASE NUMBER:  2116389

HOME AFFAIRS REFERENCE(S):          BCC2020/2214496

MEMBER:K. Chapman

DATE:16 December 2021

PLACE OF DECISION:  Brisbane

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).

Statement made on 16 December 2021 at 11:58am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history – statement from an appropriate authority – Immigration/Citizenship Certificate issued by the Australian Federal Police (AFP) – 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 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 31 August 2020. 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.

3. Regulation 2.03AA 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 to 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 November 2021 on the basis that the applicant did not meet r.2.03AA, because they failed to provide an Immigration/Citizenship Certificate from the Australian Federal Police (AFP) as requested.

6. The Tribunal did not consider a hearing to be necessary in this matter, 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.

7. Accordingly, 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 in Australia that provides evidence about whether or not they have a criminal history.

   Has the applicant provided a statement from an appropriate authority?

9. The Tribunal is satisfied that the delegate made a request for the applicant to provide an Immigration/Citizenship Certificate from an appropriate authority, which in this case is the AFP, pertaining to a country where the applicant resides or has resided. In the circumstances, the applicant must provide the requested statement to satisfy r.2.03AA.

10. The applicant submitted to the Tribunal a copy of an Immigration/Citizenship Certificate dated 17 November 2021 issued by the AFP. The Certificate indicates there are no disclosable court outcomes recorded against the applicant’s name. Accordingly, the applicant has provided a statement from an appropriate authority and therefore satisfies r.2.03AA(2)(a). 

11. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

12. On the basis of the above findings, the applicant satisfies r.2.03AA(2).

    DECISION

13. 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).

    K. Chapman
    Member