Waraich (Migration)

[2018] AATA 546

Waraich (Migration) [2018] AATA 546 (2 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shamsher Singh Waraich

CASE NUMBER:  1712565

DIBP REFERENCE(S):  BCC2017/903893

MEMBER:Saxon Rice

DATE:2 March 2018

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:

·cl.485.213 of Schedule 2 to the Regulations; and

·r.2.03AA(2)(a) of the Regulations.

Statement made on 02 March 2018 at 4:44pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Evidence of police checks – AFP clearance documentation provided – No criminal history – Applicant satisfies requirements

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 501
Migration Regulations 1994, r 2.03AA Schedule 2 cls 485.216, 485.213 Schedule 4 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 on 26 May 2017 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 7 March 2017. 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. The delegate noted that this clause required (amongst other things) that the applicant satisfied Public Interest Criterion 4001 (PIC 4001), which in turn required that he had a full disclosure Australian Federal Police (AFP) clearance. The delegate found that although the applicant had answered ‘yes’ in his visa application form to the question of whether he had applied for an AFP clearance in the 12 months immediately before making his visa application, he did not provide any evidence of that application or an actual AFP full disclosure clearance when requested to do so by the Department. The delegate found that cl.485.216 was therefore not met because the applicant had not provided evidence that he had applied for an AFP clearance in the 12 months immediately preceding his visa application.

4. The Tribunal received a review application from the applicant on 14 June 2017 which was accompanied by a copy of the delegate’s decision. On 16 February 2018 the Tribunal sent the applicant an invitation under section 359(2) of the Act, to provide information to support the requirements of PIC 4001 in accordance with cl.485.216 of the Regulations. On 2 March 2018, the Tribunal received a full disclosure AFP clearance issued to the applicant on 9 March 2017 indicating that the AFP had no records against his name and a receipt for the application for the certificate dated 2 March 2017.

5. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. The applicant was represented in relation to the review by his registered migration agent.

   Evidence relating to police checks

7. 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.

8. The Tribunal is satisfied that the applicant both stated that he had applied for an AFP clearance in his visa application and the receipt provided to the Tribunal dated 2 March 2017 indicates that he had done so.

9. It is therefore satisfied that the applicant meets cl.485.213.

10. Clause 485.216(1) requires that, amongst other things, the applicant satisfies PIC 4001. PIC 4001 in turn requires that the applicant has satisfied the Minister that he passes the character test, or that the Minister is satisfied after appropriate inquiries that there is nothing to indicate that he would fail to satisfy the Minister that he passes the character test. (There are also provisions in PIC 4001 relating to where the Minister is not satisfied that the applicant passes the character test, or reasonably suspects that he does not, but decides to grant the visa anyway, but these do not appear relevant in the current case). The ‘character test’ is set out in s.501 of the Act.

11. In addition, r.2.03AA(2)(a) requires that if a person is required to satisfy PIC 4001 for the grant of a visa, then they must provide a ‘statement (however described) provided by an appropriate authority in a country where the person resides, that provides evidence about whether or not the person has a criminal history.’ There is no evidence before the Tribunal to indicate whether the delegate conducted a full character test assessment for the purposes of s.501 or made a finding that the applicant did not satisfy PIC 4001. Rather, it appears evident to the Tribunal that the delegate considered that the applicant could not meet cl.485.216 because he had not provided an AFP clearance as at the date of the delegate’s decision.

12. As the Tribunal has found that the applicant has now provided an AFP clearance issued on 9 March 2017 indicating that he does not have a criminal history, it considers it appropriate to find that the applicant meets r.2.03AA(2)(a) and to leave the remainder of PIC 4001 (and cl.485.216) to be assessed by the Department upon remittal.

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

    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:

    ·cl.485.213 of Schedule 2 to the Regulations; and

    ·r.2.03AA(2)(a) of the Regulations.

    Saxon Rice
    Member