Hassan (Migration)

[2018] AATA 5289

Hassan (Migration) [2018] AATA 5289 (21 November 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Murtaza Hassan

CASE NUMBER:  1812357

DIBP REFERENCE(S):  BCC2018/1098919

MEMBER:Wan Shum

DATE OF DECISION:  21 November 2018

DATE CORRIGENDUM

SIGNED:22 November 2018

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

·     The second sentence of paragraph 11 should read: It notes that he applied for the check shortly after the visa application was made and that the check confirmed that there were no disclosable outcomes.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Murtaza Hassan

CASE NUMBER:  1812357

HOME AFFAIRS REFERENCE(S):           BCC2018/1098919

MEMBER:Wan Shum

DATE:21 November 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 21 November 2018 at 8:41am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police check – 12 months immediately before visa application – innocent mistake ­– no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 on 13 April 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 March 2018. 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 declared that he did not apply for the Australian Federal Police check in the 12 months prior to the application being made on his visa application form. The delegate found that the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements of cl.485.213 of Schedule 2 to the Regulations

   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. In response 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?” on the online Subclass 485 visa application form, the applicant answered “No”.  The delegate proceeded to find that the applicant did not satisfy cl.485.213.

9. At the hearing, the applicant confirmed that he had not applied for a police check before he made the visa application. He stated that he had applied for the visa himself, and that he was allowed to proceed with his application even though he had responded in the negative. He did not receive any correspondence from the department prior to his visa being refused. The Tribunal indicated that it was unable to make a favourable finding in the circumstances. The applicant had initially requested that the Tribunal refer his case to the Minister but following the hearing, he advised that no longer wished to do so after seeking advice about his circumstances.
   

10. On the evidence before the Tribunal, the applicant had not applied for an AFP check during the 12 months immediately before the day his application was made. There is thus no dispute that the application was not accompanied by evidence of having applied for an Australian Federal Police check as required by cl.485.213. 

11. The Tribunal accepts that the applicant’s failure to make an application for an AFP check before lodging his Subclass 485 visa application was an innocent mistake. It notes that he applied for the check shortly after the visa application was refused and that the check confirmed that there were no disclosable outcomes. However, it does not have any discretion to waive the requirement that the applicant meets cl.485.213 of Schedule 2 of the Regulations.

12. On the evidence before the Tribunal, the applicant does not satisfy cl.485.213.

13. 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

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

    Wan Shum
    Member