1602202 (Migration)

[2016] AATA 4575

1602202 (Migration) [2016] AATA 4575 (14 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Keme Junior Sube

CASE NUMBER:  1602202

DIBP REFERENCE(S):  BCC2015/2535509

MEMBER:Hugh Sanderson

DATE:14 October 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 14 October 2016 at 11:19am

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 4 February 2016 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 1 September 2015. 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.485.213 of Schedule 2 to the Regulations because the applicant had not applied for and Australian Federal Police (AFP) check during the 12 months immediately before the day the application was made.

   Background

4. The applicant applied for the subclass 485 visa on 1 September 2015. The application form contains at the start of the form the following warning:

   To be eligible to be granted a subclass 485 visa through the Graduate work stream, you must have already taken steps to meet certain requirements and obtain documentation before you lodge your application. If you do not meet the requirements below, you may not be able to lodge or to be granted a visa.

5. In the form the following question is asked:

   Have you and all persons included in this application who are 16 years of age or over, applied in the last 12 months to the Australian Federal Police for a check of criminal records?

6. In response to this question, the applicant answered “No”.

7. On 14 December 2015 the Department wrote to the applicant requesting further information in support of the application. Amongst the details requested was a request that he provide evidence, such as an application receipt, that he had applied for an AFP check in the 12 months immediately before the day he lodged his application. The applicant failed to provide any evidence to the Department that he had applied for an AFP check prior to filing the application.

8. The delegate who considered the application was not satisfied that the applicant had applied for an AFP check during the 12 months immediately before the day of the application. Accordingly the delegate found that the applicant did not meet the criteria in cl.485.213 and refused the application.

   Information to the Tribunal

9. The applicant provided a National Police Certificate dated 29 December 2015 which certified that he had no disclosable court outcomes recorded against him.

10. The applicant’s agent made submissions where it was noted the AFP check was not received by the Department until after the decision was issued. It was argued that the Tribunal should look favourably upon the applicant and the applicant’s agent argued that “factors such as the considerable amount of time it is known to take to apply for and obtain an Australian Federal Police check” should be taken into account.

11. No evidence was provided by the applicant to indicate when the application for the AFP check was applied for such as a receipt or other documentation indicating the application being made.

12. The applicant appeared before the Tribunal on 14 October 2016 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

13. The applicant acknowledged that he had applied for the AFP check only after he had applied for the application. He said that when he applied for the visa he did not have any representation and did not realise he was required to have already applied for the AFP check.

14. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Evidence relating to police checks

15. 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.

16. The applicant applied for the subclass 485 visa on 1 September 2015. The certificate provided by the applicant is dated 29 December 2015, more than three months after the application was filed. The applicant acknowledged that he only filed the application for the AFP check after he filed his visa application.

17. The Tribunal finds that when the visa application was made there was no evidence the applicant had applied for an AFP check during the 12 months immediately before the day of the application and that the applicant only took steps to apply for an AFP check after the application was made.

18. Therefore the applicant does not satisfy cl.485.213.

19. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Hugh Sanderson
    Member