Mahalingam (Migration)

[2019] AATA 2179

Mahalingam (Migration) [2019] AATA 2179 (12 February 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Sivaraj Mahalingam

CASE NUMBER:  1831261

DIBP REFERENCE(S):  BCC2018/3115659

MEMBER:  Kate Millar

DATE AND TIME OF

ORAL DECISION AND REASONS:          12 February 2019 at 2:04 pm (SA time)

DATE OF WRITTEN RECORD:                19 March 2019

PLACE OF DECISION:  Adelaide

DECISION:  The Tribunal affirms the decision under review.

Statement made on 19 March 2019 at 4:12pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police check – applied after date of visa application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 485.213

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 October 2018 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).

2. At the hearing on 12 February 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

   This is the decision and oral reasons for decision delivered in Adelaide. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 October 2018 to refuse to grant you a Skilled (Provisional) (Class VC) visa and that refusal was under section 65 of the Migration Act 1958.

   You applied for the visa on 18 August 2018. 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. You must meet the primary criteria set out in that provision to be granted the visa.

   The delegate refused to grant the visa because the delegate found you did not satisfy clause 485.213 of schedule 2 to the Regulations because your visa application was not accompanied by evidence that you had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made.

   That is the issue in this case; whether you did apply for an Australian Federal Police check in the 12 months immediately before the day the application was made.

   In your visa application you answered no, as you have told me today, to the question:

   Have you and all persons included in this application applied in the last 12 months to the Australian Federal Police for a check of criminal records?

   Your application has no response in the section of the application form that asks for applicants to provide Australian Federal Police check details. Your application was lodged on 18 August 2018.

   You have provided an Australian Federal Police check dated 3 October 2018 and a receipt to show you paid the fee for this police check on 2 October 2018, however this is after your visa application.

   It follows that when the visa application was made it was not accompanied by evidence that you had applied for an Australian Federal Police check in the 12 months before the visa application. Therefore, you do not meet clause 485.213 and you 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 have to be affirmed.

   I appreciate what you are saying today, that you just wanted experience in your field and that it was a mistake, however I am not given any discretion in how I have to apply those criteria; they are contained in the legislation and have to be applied. Therefore my decision today is to affirm the decision not to grant you a Skilled (Provisional) (Class VC) visa.

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DECISION

1. The Tribunal affirms the decision under review.

   Kate Millar

   Senior Member

Case Number 1831261  Page 3 of 3