Hui (Migration)

[2018] AATA 2259

Hui (Migration) [2018] AATA 2259 (14 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lik Hang Hui

CASE NUMBER:  1722277

DIBP REFERENCE(S):  BCC2017/2900331

MEMBER:Denise Connolly

DATE:14 May 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 14 May 2018 at 8:20am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Requirement for evidence of application for an Australian Federal Police (AFP) check to accompany visa application – Applicant applied for AFP check after making visa application – Application for AFP check must be made prior to visa application – Decision 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 Immigration on 14 September 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 13 August 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 the applicant.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations because, when the application was made, it was not accompanied by evidence that the applicant had applied for an Australian Federal Police (AFP) check.

4. The applicant appeared before the Tribunal on 9 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5. 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

6. 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.

7. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It states that when the applicant lodged the visa application he declared that he had not applied for an AFP check in the last 12 months. The Tribunal has checked the visa application and this is correct.

8. The applicant has also provided to the Tribunal documents relating to other visa requirements, including evidence of his qualifications.

9. At the hearing the Tribunal explained to the applicant the requirements of cl.485.213. It also explained that it does not have any discretion in such cases and must apply the law. The applicant indicated that when he made the visa application he was unsure about the AFP check so he did not make the application however he immediately made the application for the check when he lodged his review application (on 19 September 2017). The Tribunal explained that the applicant needed to provide evidence with his visa application that he had already applied to the AFP. He indicated he understood.

10. On the basis of the evidence before it the Tribunal is satisfied the applicant acknowledged at the time of the visa application that he had not applied for an AFP check in the previous 12 months. The applicant did not dispute this at his hearing. Given this evidence the Tribunal is not satisfied that when the visa application was made, it was accompanied by evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.

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

12. 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

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

    Denise Connolly
    Member