CHEPURI (Migration)

[2018] AATA 1198

CHEPURI (Migration) [2018] AATA 1198 (9 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SANTOSH SAI SHARAN CHEPURI

CASE NUMBER:  1711066

DIBP REFERENCE(S):  BCC2017/1702177

MEMBER:Bridget Cullen

DATE:9 April 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 09 April 2018 at 9:32am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Requirement to apply for National Police Check – Incorrect information in form – Genuine Mistake – Application for National Police Check made prior to visa application

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 17 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 12 May 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 applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations as there was no evidence 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 (AFP) National Police Check during the 12 months immediately before the day the application is made - noting the answer 'No' to this question on the first page of the applicant's online application form.

4. The applicant appeared before the Tribunal on 9 April 2018 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case 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 any evidence of the police check application being made had accompanied the visa application.

   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 years of age, had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.

9. The applicant is the only person included in this visa application.  Accordingly, to satisfy a material criterion at time of application, the visa applicant must be able to show that he (as the relevant applicant) had applied for the AFP police check in the last 12 month period immediately prior to the visa application lodged on 17 May 2017 (being the period 17 May 2016 to 17 May 2017).

10. The visa applicant told the Tribunal that he applied for the AFP National Police Check on 12 April 2017. There is evidence before the Tribunal, provided by the applicant at the hearing, comprised of a receipt dated 12 April 2017 confirming the applicant's oral evidence of the date of application for the AFP check made on 12 April 2017.

11. The AFP National Police Check clearance certificate, provided by the applicant to the Tribunal, is dated 15 May 2017.  There are no disclosable court outcomes recorded against the applicant.

12. As the applicant applied for the AFP National Police Check approximately one-month prior to the date the visa application was lodged on 12 May 2017, it satisfies the criterion that the application was made in the relevant 12 month period immediately before the visa application was lodged.

13. There is a further requirement that there is evidence relating to the AFP check application being made, accompanying the visa application. From the oral evidence provided at the hearing and a consideration of the online application, 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 oral evidence that he misunderstood the question as relating to whether or not an AFP National Police Check clearance certificate has been issued in hardcopy, and could therefore be attached, at the time of his application (as opposed to made) and because it had not yet been issued, he therefore answered “No”.

14. The Tribunal notes the submission and evidence that the applicant's online application for the visa was lodged on 12 May 2017. The AFP certificate was not issued until three days later and was received after the visa applicant had already lodged his on-line visa application.

15. Because the visa applicant had in fact lodged his application for the AFP check three days earlier on 12 May 2017, the Tribunal accepts his oral evidence and submissions that the “No” answer to that relevant question was a mistake made on the basis of his misunderstanding stated above and that he would have otherwise answered “Yes”.

16. 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 with the proper understanding of that question, the visa applicant's answer would have been in the affirmative, in which case that would be evidence given of such an application already made at the time he applied for the visa. The Tribunal has given the benefit of doubt to the visa applicant as he clearly had evidence of the AFP check application being made on 12 April 2017 – approximately one month before he lodged the visa application which could readily have been provided on his visa application if he properly understood the question. It is entirely plausible that the visa applicant would otherwise have answered in the affirmative given he had already lodged the AFP check application and a ”Yes” answer would assist his case. The Tribunal has also taken into account that at the time of his visa application, the applicant was not represented by a Migration Agent.

17. Accordingly, the Tribunal considers that in the particular circumstances above in this case, there is evidence that the visa applicant had made an application for an AFP police check when the application for the visa was lodged and this otherwise would have been evidence provided to the Department at the time of his application on the basis of an affirmative response to the question that he had misunderstood.

18. 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 would accompany the visa application.

19. Therefore the applicant satisfies cl.485.213.

20. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

21. 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