Ko (Migration)

[2019] AATA 3310

Ko (Migration) [2019] AATA 3310 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sangwook Ko

CASE NUMBER:  1905717

HOME AFFAIRS REFERENCE(S):          BCC2018/5861921

MEMBER:Ian Berry

DATE:5 July 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 05 July 2019 at 12:35pm

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 26 February 2019 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 28 December 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 visa because the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations because at the time the applicant had not obtained an Australian Federal Police check.

4. The applicant appeared before the Tribunal on 5 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant. 

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 the applicant complying with cl.485.213 by the Australian Federal Police check accompanying the applicant’s visa application, or otherwise providing evidence of his having obtained an Australian Federal Police check before lodging his visa application.

   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. Clause 485.213 states

   When the application was made, it was accompanied by evidence that:

   (a)          the applicant; and

   (b)          each person included in the application he was at least 16;

   Had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.

9. The applicant explained of his circumstances and having obtained an Australian Federal Police check a copy of which was provided to the Tribunal but was dated 2 March 2019. The Australian Federal Police check was applied for and obtained after the applicant had made his visa application.

10. Therefore the applicant does not satisfy 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.

    Ian Berry
    Member