Law (Migration)

[2018] AATA 2921

Law (Migration) [2018] AATA 2921 (11 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Felicia Hui Ling Law

CASE NUMBER:  1813716

DIBP REFERENCE(S):  BCC2018/888861

MEMBER:Amanda Mendes Da Costa

DATE:11 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.213 of Schedule 2 to the Regulations.

Statement made on 11 July 2018 at 11:01am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – Character test – Australian Federal Police check – Applied for an AFP check within the timeframe – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 485.213, 485.216

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 23 April 2018 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 24 February 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.485.216 of Schedule 2 to the Regulations because the applicant did not provide an Australian Federal Police check and therefore did not satisfy the Public Interest Criteria in cl.485.216(1).

4. The applicant appeared before the Tribunal on 11 July 2018 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant met cl.485.213, which requires that at the time the application was made, it was accompanied by evidence that the applicant had applied for an Australian Federal Police check (AFP check) during the 12 months immediately before the day the application is made.

7. The Tribunal notes that although the delegate applied the correct test, i.e. whether at the time the application was made, it was accompanied by evidence that the applicant had applied for an AFP check during the 12 months immediately before the day the application was made, she miss-cited the applicable sub-regulation as cl.485.216 instead of cl.485.213. 

   Evidence relating to police checks

8. 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.

9. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review, in which it is noted that the applicant applied for the visa on 24 February 2018 and declared on the application form that she had applied for an AFP check in the past 12 months.

10. The Tribunal notes that the application was not accompanied by an AFP check but that on 29 May 2018 the applicant provided the Tribunal with an AFP check dated 6 February 2018.

11. The applicant told the Tribunal, that although she had not provided an AFP check to the Department, she had declared on her application form that she had applied for an AFP check in the 12 months immediately preceding her application, and had provided a reference number 4098797PC for her AFP check request.  The applicant submitted that the provision of the reference number (which had been given to her by the AFP when she requested an AFP check), constituted evidence that she had applied for an AFP check in the 12 months immediately before the day the application was made.

12. The Tribunal accepts the applicant’s submissions and finds that cl.485.213 does not require that an AFP check accompany the visa application, rather that evidence that the applicant has applied for an AFP check in the 12 months immediately before the day the application is made, accompanies the application.    

13. On the evidence before it, the Tribunal is satisfied that the visa application was accompanied by evidence that the applicant applied for an AFP check in the 12 months immediately  before the day the visa application was made.

14. Therefore the applicant satisfies cl.485.213.

15. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

16. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.213 of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member