GAGANDEEP SINGH (Migration)

[2018] AATA 5131

GAGANDEEP SINGH (Migration) [2018] AATA 5131 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GAGANDEEP SINGH

CASE NUMBER:  1832953

HOME AFFAIRS REFERENCE(S):           BCC2018/3052705

MEMBER:Jennifer Cripps Watts

DATE:18 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2018 at 3:59pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – subclass 485 – Graduate Work stream – AFP Police Disclosure Certificate not made in the 12 months immediately before day of application – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 485.213, 485.216(1), r 2.03AA

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 on 26 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 14 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.485.216 of Schedule 2 to the Regulations because he did not satisfy the public interest criteria as required by sub-clause 485.216(1). Under r.2.03AA, the applicant is required, essentially, to provide an Australian Federal Police check (AFP check) in the form of an AFP Police Disclosure Certificate. One was requested by the delegate and the applicant did not provide one.

4. However, having reviewed the Department and Tribunal files, the determinative issue, in the view of the Tribunal, given the facts and circumstances in this case, is whether the applicant met cl.485.213 at the time of application which requires, essentially, that the applicant has applied for an AFP check during the 12 months immediately before the day the visa application is made.  The applicant was put on notice of this at the hearing and it was explained to him.

5. The applicant appeared before the Tribunal on 18 December 2018 to give evidence and present arguments.  

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant applied for a Subclass 485 visa in the Graduate Work stream.  All criteria must be satisfied at the time a decision is made on the application, unless otherwise stated.

9. The visa was refused by the delegate because the applicant did not satisfy cl.485.216.  However, the Tribunal considers the issue to be whether the applicant meets cl.485.213.

10. The applicant was informed at the beginning of the hearing that cl.485.213 was going to be considered.  Clause 485.213 requires that:

    When the application was made, it was accompanied by evidence that;

    (a)   the applicant; and

    (b)   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. On the evidence, the applicant made his Subclass 485 visa application that is the subject of this review on 14 August 2018.  In the online application form he answered ‘yes’ 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?’.  At the hearing, the applicant confirmed that when he applied for the visa in August he had applied for a police check which was given to him in September 2018.  He provided a reference number 4681312PC.  He said when he received the police check (relating to that reference number), he realised it was the wrong one, that is, it was not an AFP Complete Disclosure certificate.  The Tribunal is satisfied that the application reference number the applicant provided that accompanied his visa application related to the September 2018 certificate.

12. A little over a month after the visa application was made, on 18 September 2018, a case officer at the Department assessed the application and emailed the applicant requesting that he provide more information for the Temporary Graduate (Post-Study Work) (Subclass 485) visa.  The applicant was provided with information about how to go about it, relating relevantly to the AFP check, and he was given 28 days to respond.

13. On 16 October 2018 the applicant provided a receipt for the AFP check application made on and dated 8 October 2018 (reference number 4836377PC), which post-dates the visa application made on 14 August 2018 by more than seven weeks.  The applicant confirmed at the hearing that the AFP Complete Disclosure certificate dated 22 October 2018 he has now provided relates to the 8 October 2018 receipt.  On the evidence, the application for the AFP check dated 8 October 2018 was not made in the 12 months immediately before the day the (visa) application was made. 

14. The Tribunal finds that the applicant, for the above reasons, does not satisfy cl.485.213.

15. 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

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

    Jennifer Cripps Watts
    Member