Vaikkattil Haridas (Migration)

[2022] AATA 5105

Vaikkattil Haridas (Migration) [2022] AATA 5105 (5 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sreejith Vaikkattil Haridas

REPRESENTATIVE:  Mrs Thara Sujithkumar

CASE NUMBER:  2214648

HOME AFFAIRS REFERENCE(S):          BCC2020/2231172

MEMBER:Alan McMurran

DATE:5 December 2022

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:

·cl 485.216(1) of Schedule 2 to the Regulations

Statement made on 05 December 2022 at 2:56pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – character test – statement from an appropriate authority – National Police Certificate issued by the AFP – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 485.216; Schedule 4, PIC 4001

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged on 5 October 2022 for review of a decision made by a delegate of the Minister for Home Affairs on 19 September 2022 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 2 September 2020. 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 of Schedule 2 to the Regulations because the applicant had not provided an AFP Immigration/ Citizenship Certificate (“AFP Certificate”).

4. On 3 November 2022, the Tribunal received from the applicant an AFP Certificate dated 2 November 2022.

5. In the circumstances, the Tribunal finds in accordance with section 360(2)(a) of the Act that it is able to decide the review in the applicant’s favour on the basis of the material now before it.

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

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 the present case is whether the applicant meets the requirement in Public Interest Criteria (PIC) 4001, as required in sub-regulation 485.216(1).

9. Regulation 485.216 requires at subregulation (1) that the applicant satisfies public interest criteria 4001.

10. PIC 4001 requires that either:

    a.the person satisfies the Minister that the person passes the character test; or

    b.the Minister is satisfied, after appropriate enquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

    c.the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

    d.the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

    (“The character test”)

11. Following lodgement of the application, as there was no evidence to satisfy the character test provided, the Department wrote to the applicant on 7 April 2022. The applicant did not respond and a Department decision made on 19 September 2022 referred to the fact there was no evidence to meet the character test.

12. Following lodgement of the merits’ review application with the Tribunal, the Tribunal wrote to the applicant on 24 October 2022 requesting a copy of a National Police Certificate issued by the AFP for the purpose of “Immigration/Citizenship”.

13. The applicant obtained a certificate from the AFP dated 2 November 2022, and a copy was emailed to the Tribunal on 3 November 2022.

14. The Tribunal has reviewed the information now provided and is satisfied and finds that the applicant now meets PIC 4001.

15. As a consequence, the Tribunal finds that the applicant satisfies cl 485.216(1).

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

    DECISION

17. 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:

    ·cl 485.216(1) of Schedule 2 to the Regulations;

    Alan McMurran
    Member