Binita (Migration)

[2020] AATA 2856

Binita (Migration) [2020] AATA 2856 (3 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Maharjan Binita
Mr Nikhil Mukhia

CASE NUMBER:  1926279

HOME AFFAIRS REFERENCE(S):          BCC2019/3735058

MEMBER:Jennifer Cripps Watts

DATE:3 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 3 June 2020 at 10:40am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – evidence of having applied for Australian Federal Police (AFP) Checks did not accompany the visa application–decision under review affirmed

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

CASES
Sun (Migration) [2020] AATA 639

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 (the delegate) on 9 September 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 28 July 2019. 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 visas because the first named applicant (the applicant) did not satisfy cl.485.213 of Schedule 2 to the Regulations because evidence of having applied for Australian Federal Police (AFP) Checks did not accompany the visa application.

4. The applicant appeared before the Tribunal on 3 June 2020 to give evidence and present arguments.  It was confirmed by the applicant that the secondary applicant was aware of the invitation to attend the hearing, but that he elected not to attend to give oral evidence because he had work commitments.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the visa application was accompanied by evidence that the applicants had applied for AFP Checks in the 12 months immediately before the date of the visa application that is the subject of this review.

7. It was explained to the applicant that the Tribunal, Federal Courts, and some other courts and tribunals, are currently conducting hearings by phone where it is appropriate due to the COVID-19 situation, and that her matter had been identified as suitable.  The Tribunal is satisfied that the audio was clear on both sides throughout the hearing. 

   Evidence relating to police checks

8. 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.

9. The applicant provided the Tribunal with a copy of the delegate’s decision; the visas were refused on 9 September 2019.  Copies of AFP Checks for herself and the secondary applicant issued on 19 September 2019 and 10 September 2019 respectively, declaring no disclosable outcomes, were also provided. 

10. The applicant was told that the Tribunal had checked the online visa application where the answer ‘No’ was recorded in response to the question:

    ‘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? ‘

11. In addition, the applicant was reminded that further on in the online application, where there is space to provide details of an AFP Check application, no information had been provided.  It was confirmed with the applicant, at the hearing, that evidence of having applied for AFP Checks in the 12 months before the application was made needed to accompany the visa application and that such evidence did not accompany the application, meaning the applicants cannot meet cl.485.213.

12. The applicant referred to another AAT case (differently constituted) where an applicant provided an AFP Check to the Tribunal on review, after the decision was made to refuse the visa. It was explained that this visa was refused for a different reason. In Sun (Migration) [2020] AATA 639 (11 March 2020) the applicant had answered ‘Yes’ to the AFP Check and they had provided a receipt number, which meant (on the face of it) that their application was accompanied by evidence that they had applied for an AFP Check as required to meet cl.485.213. The applicant indicated she understood the distinction.

13. For the reasons given, the applicant does not satisfy cl.485.213.

14. 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.

    Secondary applicant

15. As the Tribunal has affirmed the decision to refuse the applicant’s visa, the decision to refuse the secondary applicant’s visa is also affirmed.

    DECISION

16. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Jennifer Cripps Watts
    Member