Bam (Migration)

[2018] AATA 1577

Bam (Migration) [2018] AATA 1577 (23 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hikmat Bam

CASE NUMBER:  1710566

DIBP REFERENCE(S):  BCC2017/1123877

MEMBER:Bridget Cullen

DATE:23 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.

STATEMENT MADE ON 23 MARCH 2018 AT 12:45PM

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Requirement to apply for police check – Mistake in application form – Police check attached with application – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.213

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 11 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 23 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 delegate considered that the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations. This was because the delegate found that there was no evidence that, at the time of his visa application, that each person included in the application who is at least 16 years of age, had applied for an Australian Federal Police Check during the 12 months immediately before the day the application is made. The delegate further noted that the applicant ticked the answer 'No' to the question as to whether he had attached this information on the first page of the applicant's online application form.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is is whether the applicant had applied for a police check; whether it was made in the 12 months immediately before the date of application; and whether any evidence of the police check application being made had accompanied the visa application.

   Evidence relating to police checks

6. 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.

7. The visa applicant is the only person included in the online application form, and he is over 16-years of age. Accordingly, to satisfy a material criterion at time of application, the visa applicant must be able to show that he had applied for the AFP police check in the 12 month period immediately before the visa application was lodged on 9 March 2017 (being the period 9 March 2016 to 9 March 2017).

8. The visa applicant has provided written evidence, in the form of a receipt from the Australian Federal Police, indicating that he applied for the AFP National Police Check on 20 March 2017, prior to lodging his visa application.  As this is three days before the visa application was lodged, it satisfies the criterion that the application was made in the relevant 12 month period immediately before the visa application was lodged.

9. There is a further requirement that there is evidence relating to the AFP check application being made, accompanying the visa application. The applicant has provided the Tribunal with a statement explaining that:

   At the time of application, by mistake I marked ‘No’ on the particular question regarding AFP application though I had attached the AFP report. That was a click error. I think visa officer may not have looked on the attachment and just took the decision on the basis of the answer in the application form. I want to state that I have not been asked for any further information and provided a chance for natural justice as well.

   I have attached following information and documents for your reference.

10. The Tribunal is satisfied that the answer to this question on the visa application form was in the negative. The Tribunal accepts the visa applicant's written statement that this was a mistake, but that he had attached the AFP National Police Check clearance certificate, which had been issued on 21 March 2017, two days prior to the date of application.  The Tribunal has confirmed that the Departmental file reflects that the applicant did attach the same AFP National Police Check clearance certificate, dated 21 March 2017. 

11. The Tribunal has also had regard to the declaration made by the visa applicant in his application for the visa, and accepts that the erroneous “No” answer was not intended to be misleading information or false. The Tribunal accepts that this was a “click error” and that the applicant, having actually attached the police check clearance, meant to answer “Yes” to the question. The Tribunal is therefore satisfied that the police check clearance accompanied the applicant’s visa application.

12. The Tribunal therefore finds:

    ·The applicant had applied for a police check; and it was made in the 12 months immediately before the date of application; and

    ·there is evidence of that application having been made that accompanied the visa application.

    Therefore, the applicant satisfies cl.485.213. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

13. 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.

    Bridget Cullen
    Member