Yangchen (Migration)

[2024] AATA 4021

Yangchen (Migration) [2024] AATA 4021 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yeshi Yangchen
Mr Jigme Wangda

REPRESENTATIVE:  Mr Dal Bahadur Chhetri

CASE NUMBER:  2431945

HOME AFFAIRS REFERENCE(S):          BCC2024/3345588

MEMBER:Member Nathan Goetz

DATE:10 October 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision of the delegate dated 5 September 2024 refusing to grant Ms Yeshi Yangchen the Skilled (Provisional) (Class VC) visa and remits the visa application back to the delegate for reconsideration, with a direction that she meets the following criteria for a Subclass 485 visa:

·Regulation 2.03AA(2)(a)

The Tribunals sets aside the decision of the delegate dated 5 September 2024 refusing to grant Mr Jigme Wangda the Skilled (Provisional) (Class VC) visa and remits the visa application back to the delegate for reconsideration, with a direction that he may meet the following criteria for a Subclass 485 visa if Ms Yeshi Yangchen is granted the visa:

· Cl 485.311 of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 10 October 2024 at 8:23pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history – Australian Federal Police National Police Certificate provided upon review – decision under review set aside  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.213, 485.311; Schedule 4, Public Interest Criterion 4001; r 2.03AA

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister who refused to grant the applicants Skilled (Provisional) (Class VC) visas.

2. The applicants were represented in the review by registered migration agent 1688108.

   BACKGROUND

3. The applicants applied for the visas on 26 June 2024. 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.

4. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: reg 2.03AA(1). In this case, clause 485.213 of Schedule 2 of the Regulations requires Ms Yeshi Yangchen to meet PIC 4001. Ms Yeshi Yangchen is therefore required to satisfy the criterion in reg 2.03AA(2).

5. Regulation 2.03AA(2)(a) requires that, if requested, an 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.

6. On 5 September 2024 the delegate refused to grant Ms Yeshi Yangchen the visa on the basis that he had not provided a statement from an appropriate authority in Australia which demonstrated whether or not he had a criminal history. The delegate therefore found that Ms Yeshi Yangchen did not satisfy reg 2.03AA.

7. On 5 September 2024 the delegate found that as Ms Yeshi Yangchen had been refused the visa, Mr Jigme Wangda did not satisfy cl 485.311 of Schedule 2 to the Regulations because he was not a member of the family unit as a person who holds the relevant visa.

8. On 6 September 2024 the review application was lodged with the Tribunal. Included with the visa application form was an Australian Federal Police National Police Certificate dated 10 August 2024 which identified that Ms Yeshi Yangchen had no disclosable court outcomes recorded against her name.

   CONSIDERATION AND CONCLUSION

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

   Has Ms Yeshi Yangchen provided a statement from an appropriate authority?

10. The Australian Federal Police National Police Certificate dated 10 August 2024 is a statement from an appropriate authority demonstrating whether or not Ms Yeshi Yangchen has a criminal history in Australia.

11. Based on this certificate, which the delegate requested from the applicant, Ms Yeshi Yangchen satisfies reg 2.03AA(2)(a). It is regrettable that she did not provide the certificate to the delegate when requested.

12. Concerning the review application for Mr Jigme Wangda, it is appropriate for that matter to also be remitted back to the delegate for reconsideration in the event that Ms Yeshi Yangchen is granted the visa she has applied for as Mr Jigme Wangda contends that he is a member of her family unit.

    DECISION

13. The Tribunal sets aside the decision of the delegate dated 5 September 2024 refusing to grant Ms Yeshi Yangchen the Skilled (Provisional) (Class VC) visa and remits the visa application back to the delegate for reconsideration, with a direction that she meets the following criteria for a Subclass 485 visa:

    ·     Regulation 2.03AA(2)(a)

14. The Tribunals sets aside the decision of the delegate dated 5 September 2024 refusing to grant Mr Jigme Wangda the Skilled (Provisional) (Class VC) visa and remits the visa application back to the delegate for reconsideration, with a direction that he may meet the following criteria for a Subclass 485 visa if Ms Yeshi Yangchen is granted the visa:

    · Cl 485.311 of Schedule 2 to the Migration Regulations 1994 (Cth).

    Nathan Goetz

    
    

    Member