VARSANI (Migration)

[2019] AATA 1088

VARSANI (Migration) [2019] AATA 1088 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Anjani Bhimji VARSANI

CASE NUMBER:  1905651

HOME AFFAIRS REFERENCE(S):           BCC2018/3638749

MEMBER:Alan McMurran

DATE:23 May 2019

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.485.213 of Schedule 2 to the Regulations; and

·Cl.485.216 of Schedule 2 to the Regulations.

Statement made on 23 May 2019 at 1:37pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Temporary Graduate (Post-Study Work) stream – Australian Federal Police check – character test – evidence provided – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.213, 485.216, r 2.03AA(2)(a), 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 on 19 February 2019 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 25 September 2018. 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 (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 failed to provide evidence of an Australian Federal Police check during the 12 months immediately preceding the application, and therefore PIC 4001 was not met and the applicant did not meet the requirements of the subregulation 2.03AA (2).

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

   Background

5. The applicant is a citizen of the Republic of Kenya. The applicant applied for a graduate visa 485 on 25 September 2018.

6. At the time of application, the applicant had not provided an Australian Federal Police certificate.

7. On 5 December 2018, the Department sent a letter to the applicant requesting more information. In his letter, the department asked the applicant to provide evidence to satisfy the character requirement. On 2 January 2019, the applicant requested an extension of time which was granted.

8. The applicant did not respond to the Department within the time requested and following which the department proceeded to a decision on the basis the applicant had not satisfied the criterion specified in subregulation 2.03AA(2)(a ).

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has met the requirement by providing the police clearance certificate from the Australian Federal Police as evidence for the character test assessment.

   Evidence relating to police checks

10. Clause 485.213 requires that when the visa application was made, it was accompanied by evidence that the applicant, and each person included in the application who is at least 16, had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made. Cl. 483.216 (1) requires the applicant to satisfy public interest criteria 4001, which specifies that the applicant satisfies the Minister that the applicant passes the character test.

11. On 12 March 2019, the Tribunal sent a letter by email to the applicant’s migration agent at the address provided. The letter contained an acknowledgement of her application and attached information concerning the processing of her application and the ability to provide further information or evidence.

12. The Tribunal sent an email to the applicant on 12 April 2019 requesting the applicant provide a copy of the Australian Federal Police National police certificate by 10 May 2019.

13. In response, the Tribunal received and lodged online by the applicant a copy of the National police certificate provided by the Australian Federal police and dated 7 August 2018.

14. The Tribunal has had regard to the electronic file provided by the Department and the Tribunal’s file and is satisfied that the applicant has provided a valid police certificate obtained from the Australian Federal Police and which was obtained during the 12 months immediately preceding the date of the application. The Tribunal finds the applicant has met the requirement in subregulation 2.03AA (2) and satisfies the requirement for the provision of the certificate in order to meet the public interest criterion 4001.

15. Therefore the applicant satisfies cl.485.213 and cl 485.216 of Schedule 2 to the Regulations.

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.485.213 of Schedule 2 to the Regulations; and

    ·cl.485.216 of Schedule 2 to the Regulations.

    Alan McMurran
    Member