Kaur (Migration)

[2019] AATA 3311

Kaur (Migration) [2019] AATA 3311 (22 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kulwinder Kaur
Master Ekam Singh

CASE NUMBER:  1903819

HOME AFFAIRS REFERENCE(S):          BCC2018/4981182

MEMBER:Mary Sheargold

DATE:22 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 22 July 2019 at 11:13am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police check  – not accompanied by required evidence – applied for AFP check after application lodgement – 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 30 January 2019 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 9 November 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 visas because the first named applicant (the applicant) did not satisfy cl.485.213 of Schedule 2 to the Regulations, which requires that when the application was made, it was accompanied by evidence that the applicant had applied for an Australian Federal Police (AFP) check in the 12 months immediately before the date on which the visa application was lodged.  The delegate noted that the applicant answered ‘no’ in the online visa application to the question of whether he had already applied for an AFP check.

4. The applicants appeared before the Tribunal on 22 July 2019 to give evidence and present arguments.  The applicants were represented in relation to the review by their registered migration agent, Mrs Charman Preet Tiwari.  However, the agent did not attend the hearing.

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. At the hearing, the applicant told the Tribunal:

   ·she made the application for a Subclass 485 visa online without the assistance of a lawyer or migration agent;

   ·she answered ‘no’ to the question of whether she and all other persons over the age of 16 included in the application had applied for an AFP check in the preceding 12 months;

   ·upon receiving the Department’s decision, she lodged an appeal with the Tribunal;

   ·she then engaged the services of a lawyer to assist with her appeal, who advised her to apply for an AFP check, and that this occurred in February 2019;

   ·on 12 March 2019, she received her AFP check;

   ·she believed her lawyer had provided the documents to the Tribunal; and

   ·she was advised by her lawyer that she simply needed to produce her passport at the hearing and state that she now had an AFP check.

8. At the hearing, the Tribunal was able to cite a copy of the applicant’s AFP check via an image kept on her mobile phone, and accepts it was a genuine copy of the applicant’s AFP check, dated 12 March 2019.

9. Based on the evidence presented to it, the Tribunal makes the following findings:

   ·the applicants lodged a subclass 485 visa application online on 9 November 2018;

   ·in the visa application, the applicant answered ‘no’ to the question of whether she and all other persons over the age of 16 included in the application had applied for an AFP check in the preceding 12 months, and she did not provide any documentary evidence that she had done so; and

   ·on 22 July 2019, the applicant provided the Tribunal with evidence that she had an AFP check dated 12 March 2019.

10. The plain wording of cl. 485.213 specifies that an applicant’s visa application must, when it was made, have been accompanied by evidence that she had applied for an AFP check during the 12 months immediately before the date on which the visa application was made.

11. The applicant provided the Tribunal with evidence that confirms that while she did apply for an AFP check in February 2019, she did not apply for her AFP check during the “12 months immediately before the day” she made the visa application, which was 9 November 2018. 

12. Based on the agreed facts, the Tribunal must find that although the applicant did apply for an AFP check in February 2019 and received it on 12 March 2019, this date is not “during the 12 months immediately before the day the application is made” (emphasis added) as required by cl.485.213.  The applicable law does not give the Tribunal any power to waive or overlook the need to meet cl.485.213. 

13. The Tribunal finds that to be successful, the applicant must meet cl.485.213 in the way that the provision sets out, and it further finds that she did not do so.  Therefore, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa.

14. The Tribunal finds that the secondary applicant does not satisfy cl.485.311 because he is not a member of the family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria.

15. It follows that the applicants do 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 applicants Skilled (Provisional) (Class VC) visas.

    Mary Sheargold
    Member