Bramta (Migration)

[2018] AATA 3638

Bramta (Migration) [2018] AATA 3638 (25 June 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mrs Palak Bramta

Mr Chamandeep Singh Jolly

CASE NUMBER:  1813480

DIBP REFERENCE(S):  BCC2017/1329988

MEMBER:  Sheridan Lee

DATE AND TIME OF

ORAL DECISION AND REASONS:          25 June 2018 at 3:33 pm (VIC time)

DATE OF WRITTEN RECORD:               3 September 2018

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decisions under review.

Statement made on 03 September 2018 at 10:44am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary graduate) – Skilled assessment – Australian police check – Application not made within 12 months prior to visa application – Decision affirmed

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2 cl 485.213

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 19 April 2018 to refuse to grant the visa applicants Skilled (Provisional) (Class VC) Subclass 485 visas under the Migration Act 1958 (the Act).

1. At the hearing on 25 June 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. On 10 April 2017, the primary applicant applied to the Department of Home Affairs for a subclass 485 visa. The criteria for the grant of a subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994. 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 was made.

1. The tribunal has before it a copy of the application form on which the applicant declared "No" to the question regarding whether she had applied for a police check in the 12 months before lodging the visa application.

1. On 8 May 2017, the Department refused the primary visa applicant on the basis that she had not applied for a skills assessment to the nominated application. This criterion applied because the visa application was lodged under the graduate work stream. That decision was appealed for merit review to the Administrative Appeals Tribunal. The applicant argued that she had applied for the graduate work stream in error and had meant to apply under the post study work stream.

1. On 11 April 2018, the Tribunal remitted the matter with the direction that the applicant satisfied clause 485.231(1), in that the applicant held a relevant qualification and the visa could be assessed under the post study work stream.

1. On 19 April 2018, the Department again refused a visa. This time on the basis that the applicant did not satisfy clause 485.213, that the application was not accompanied by evidence of a police check. This is a criterion that is common to both streams.

1. The applicant has acknowledged that a friend helped her to apply for the visa and that there was an error in the application in that she did not apply for the police check before the application was made.

1. The Tribunal accepts that the applicant failed to appreciate what was required to apply for the subclass 485 visa. The tribunal further accepts that the applicant is dismayed that such a seemingly technical oversight could derail her subclass 485 visa application.

1. However, the tribunal must find that as the visa application was not accompanied by evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made, the applicant does not satisfy clause 485.213.

1. The applicable law does not give the tribunal any power to waive or overlook the need to meet this requirement. Hence it follows that the primary applicant does not satisfy the criteria for the grant of a subclass 485 visa.

1. In respect of the second-named applicant, Chamandeep Singh Jolly, it follows that the tribunal must find that he does not meet the criteria in 485.311, he clearly was not a member of a family unit of a person who holds a subclass 485 visa.

DECISION

1. The Tribunal affirms the decisions under review.

Sheridan Lee Member