Gohil (Migration)

[2018] AATA 1998

Gohil (Migration) [2018] AATA 1998 (21 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Chetna Rushirajsinh Gohil
Mr Rushirajsinh Dhruvvirsinh Gohil
Ms Kavyaaba rushirajsinh Gohil

CASE NUMBER:  1729475

DIBP REFERENCE(S):  BCC2017/3526324

MEMBER:Denise Connolly

DATE:21 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 21 May 2018 at 9:50am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police – Time of AFP check – 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 Immigration on 7 November 2017 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 26 September 2017. Visa Class VC contains Subclass 485. 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 on the basis that the first named applicant (the applicant) did not satisfy cl.485.213 of Schedule 2 to the Regulations because the applicant did not provide evidence of having applied for Australian Federal Police (AFP) checks during the 12 months immediately before the day the application was made.

4. The applicants appeared before the Tribunal on 14 May 2018 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence relating to police checks

7. 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.

8. The applicants provided to the Tribunal a copy of the delegate’s decision record. It states that when the applicant lodged the visa application on 26 September 2017 she declared that she had not applied for AFP checks in the last 12 months. The Tribunal has considered the visa application which confirms this is correct.

9. After making the review application on 24 November 2017 the applicant provided copies of all of the applicants’ AFP National Police Certificates – Complete Disclosure dated 18 April 2018 certifying there are no disclosable outcomes recorded against the applicants.

10. The applicants’ representative also provided written submissions which state that the applicant applied for the visas by herself without seeking professional advice. She did not understand the requirement to apply for the AFP checks and made an innocent mistake. She meets all of the other requirements for the visa. She is a qualified teacher and is able to obtain strong references. The representative asked that the Tribunal give the applicant a second chance and set the matter aside. The representative also provided documentary evidence in relation to other visa requirements, including evidence of a positive skills assessment for the occupation Early Childhood (Pre-primary school) Teacher.

11. At the hearing the Tribunal explained the requirements of cl.485.213. It explained that while the applicants have now applied for AFP checks the provision requires the applicant to have provided evidence at the time of application demonstrating that she and the second named applicant had applied for the AFP check during the 12 months immediately before the day the application was made.

12. The applicant explained that the third named applicant is in Year 8 and has been going to school in Australia since Year 5. The applicant has completed a Master of Teaching in Australia and is currently teaching. She explained that the system allowed her to proceed with the application even though she admitted she had not applied for the AFP checks. The second named applicant asked that the Tribunal make a favourable decision given the family’s circumstances. The Tribunal explained that it only has the power to make its decisions in accordance with the law and that the only person who can make a favourable decision when the law is not met is the Minister. The Tribunal indicated that this was an option for the applicants to consider if they believe the Minister should intervene in their case.

13. The Tribunal acknowledges that the online visa application system allows an applicant to proceed with a Subclass 485 visa application even when the applicant has acknowledged that they had not yet applied for their AFP check. The Tribunal acknowledges this must be the cause of some frustration for the applicants. Unfortunately it does not have any discretion to waive the requirement that the applicants meet cl.485.213 as it is worded.

14. In this case the applicant did not apply for her AFP check until after she made her visa application. She acknowledged this in her visa application. Nor was there an AFP check application made by the second named applicant until after the visa application was made.  In these circumstances the Tribunal is not satisfied the applicant, and each person included in the application who was at least 16, had applied for an AFP check during the 12 months immediately before the day the application was made.  Accordingly the Tribunal is not satisfied that, when the 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 AFP check during the 12 months immediately before the day the application was made.

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

16. 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

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

    Denise Connolly
    Member