Corvera Kravzov (Migration)

[2019] AATA 303

Corvera Kravzov (Migration) [2019] AATA 303 (8 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Galia Corvera Kravzov

CASE NUMBER:  1832055

HOME AFFAIRS REFERENCE(S):           BCC2018/3152882

MEMBER:Jennifer Cripps Watts

DATE:8 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 08 February 2019 at 12:32pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – evidence about criminal history – application for Australian Federal Police Check at time of visa application – decision under review affirmed     

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 Home Affairs (the delegate) on 12 October 2018 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 21 August 2018. 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 her application was not accompanied by evidence that she had applied for an Australian Federal Police check (AFP Check) during the 12 months immediately before the day the application was made.

4. The applicant’s visa was refused on 12 October 2018.  She applied for review of the decision on 31 October 2018, within time, and provided the Tribunal with a copy of the delegate’s decision to refuse her visa.

5. On 11 January 2019, the applicant was sent a written invitation to attend a hearing scheduled for her on 8 February 2019.  She was invited to attend and give oral evidence and also to provide any additional documentary evidence she wished to be considered, including specifically evidence that she had applied for an AFP Check during the 12 months immediately before the day the visa application was made.  The applicant responded to the hearing invitation in writing on 24 January 2019 indicating she would attend the hearing.

6. The applicant appeared before the Tribunal on 8 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from her partner, Harry Vidor-Staub.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets cl.485.213 of Schedule 2 to the Regulations. Was her visa application accompanied by evidence that she had applied for an AFP Check before she applied for the visa? The requirements of cl.485.213 were explained to the applicant at the hearing.

9. The applicant provided the Tribunal with an AFP National Police Certificate Standard Disclosure that she said she applied for after the visa was refused and that was issued on 15 October 2018.     

   Evidence relating to police checks

10. 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.

11. In the visa application the applicant answered ‘No’ 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?’

12. In the section of the application that says ‘Provide Australian Federal Police check details for all persons included in this application who are 16 years of age or over’, it has been left blank.  That is, no reference or receipt number or any other relevant information has been provided relating to an application for an AFP Check.

13. These matters were raised with the applicant at the Tribunal hearing.  Both she and her partner, Harry Vidor-Staub, said, essentially, that the visa application form is confusing and that it was not clear that the applicant needed the AFP Check at the time she lodged the application.  The applicant said that because there was an option to answer either ‘yes’ or ‘no’ to the question about whether she had applied for the AFP Check and because the application progressed online and allowed her to complete and pay for it, she did not realise that it was required.  The Tribunal has considered their evidence.

14. It is a requirement for the grant of the visa, under cl.485.213 of Schedule 2 to the Regulations, that the applicant had applied for the AFP Check in the 12 months immediately before the (visa) application was made.

15. The Tribunal has considered the relevant evidence and is satisfied that the visa application was not accompanied by evidence of the applicant having applied for the AFP Check as required in cl.485.213 of Schedule 2 to the Regulations.

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

17. 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

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

    Jennifer Cripps Watts
    Member