Jamelo (Migration)

[2020] AATA 3285

Jamelo (Migration) [2020] AATA 3285 (10 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Roxanne Jamelo

CASE NUMBER:  2003507

HOME AFFAIRS REFERENCE(S):          BCC2019/6860377

MEMBER:Jennifer Cripps Watts

DATE:10 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 10 June 2020 at 3:32pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa –evidence of having applied for Australian Federal Police (AFP) Checks did not accompany the visa application– AFP Check was applied for after the visa application was lodged –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.213, 485.223

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 22 February 2020 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 25 December 2019. 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 evidence that the applicant had applied for an Australian Federal Police (APF) Check in the 12 months immediately before the visa application did not accompany the application. A copy of the delegate’s decision was provided to the Tribunal with the review application.

4. The applicant attended the Tribunal hearing by phone on 10 June 2020 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 evidence that the applicant had applied for an AFP Check in the 12 months immediately before the date of the visa application accompanied the application, the same determinative issue on which the visa was refused.  The Tribunal has considered documentary information and oral evidence given by the applicant material to the issue on the review. 

   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 of the application.

8. The applicant made an online visa application on 25 December 2019.  In the visa application, the applicant indicated she had not applied for an AFP Check in the 12 months before making the application.  At the Tribunal hearing, the applicant confirmed that she had not applied for an AFP Check in the 12 months before the visa application, but said previously applied for a Veritas Police Check in 2017 and she was waiting for it to expire before applying for a new police check, explaining that she misunderstood the requirements (of cl.485.223).

9. The Tribunal acknowledges that the applicant has provided an AFP Check issued on 25 February 2020 confirming no disclosable court outcomes.  However, evidence of having made an application for an AFP Check did not accompany the visa application. 

10. Therefore the applicant does not meet cl.485.213.

11. 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

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

    Jennifer Cripps Watts
    Member