McColl (Migration)

[2017] AATA 2068

McColl (Migration) [2017] AATA 2068 (19 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jonathon William McColl
Mrs Amanda Joy McColl
Mr Alexander Julian McColl

CASE NUMBER:  1714658

DIBP REFERENCE(S):  BCC2017/152303

MEMBER:R. Skaros

DATE:19 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 19 October 2017 at 9:27am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) – Subclass 485   – No standing – Australian Federal Police check not provided in time

LEGISLATION

Migration Act 1958, s 65,

Migration Regulations 1994, 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 Immigration on 21 June 2017 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 12 January 2017. 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 because when the visa application was made, it was not 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 in the 12 months immediately before the day the application was made.

4. The applicant appeared before the Tribunal on 6 September 2017 by telephone to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets cl.485.213.

   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. In the visa application form the applicant indicated he, and each person included in the application who is at least 16, had not applied for an AFP check in the relevant period and no information was provided with the application to indicate that they had done so. On this basis the delegate proceeded to refuse the application.

9. On review, the applicant provided submissions and supporting documents. In the submissions, the applicant stated that he was unaware of the requirement for the AFP check and was not made aware of this requirement despite having made enquiries with the Department on two separate occasions. The applicant submitted that on the basis of advice received from the Department, which he detailed, he did not provide and AFP check but has since applied for and obtained the checks for himself and his spouse. The applicant provided the AFP checks, dated 29 June 2017 and 26 June 2017 respectively, to the Tribunal. The applicant also provided evidence of his practising certificate issued by the Law Society of Queensland and Certificates of Admission to the Supreme Court of Queensland and the High Court of Australia.

10. At the hearing, the Tribunal explained to the applicant the requirements in cl.485.213 and the evidence before it which indicates that he does not meet the requirements in that provision. In response, the applicant reiterated the evidence in his written submissions. He stated that he indicated ‘no’ on the application form because at that time he had not applied for the AFP checks but has since done so. He indicated that at the time he was preparing for his admission and relied on the Department’s advice. The applicant asked if he had any recourse given he had relied on the Department. The Tribunal explained to the applicant that even if it was to accept that he had relied on the Department’s advice, it had no discretion to waive the requirements in these matters. The Tribunal explained that it must determine on the evidence whether the requirements in cl.485.213 have been met and there is no provision in the legislation to take into account any mitigating circumstances.

11. Clause 485.213 requires the applicant and his spouse to have applied for an AFP check in the 12 months immediately before the date of application and to have provided evidence of the same with the application. It is not in dispute that the applicant and his spouse in this case had not applied for the police check in the 12 months immediately before the date of the application and no evidence had been provided with the visa application to indicate that they had done so. The AFP checks dated 26 and 29 June 2017 were applied for after the application was made and do not assist the applicants in this case.

12. Given the above, the Tribunal finds that, when the visa application was made, it was not accompanied by evidence that the applicant, and each person included in the application who is at least 16, had applied for an AFP check during the 12 months immediately before the day the application was made. Therefore the applicant does not satisfy cl.485.213.

13. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa.

14. The secondary applicants are members of the first named applicant’s family. There is nothing before the Tribunal to suggest that any of the secondary applicants meet the primary criteria for this visa. In the circumstances, the Tribunal must also affirm the decision in respect of the secondary applicants, as they are not members of the family unit of a person who satisfies the primary criteria for the visa.

15. Given the above, the decision under review must be affirmed.

    DECISION

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

    R. Skaros
    Member