Muroiwa (Migration)

[2022] AATA 1057

Muroiwa (Migration) [2022] AATA 1057 (17 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ethel Philomina Muroiwa

REPRESENTATIVE:  Mr Dharmindher Dharmindher Singh (MARN: 0849365)

CASE NUMBER:  2114368

HOME AFFAIRS REFERENCE(S):          BCC2020/1094902

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         17 March 2022 at 2:59 pm (VIC time)

DATE OF WRITTEN RECORD:                8 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 08 April 2022 at 4:45pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate)) visa – applicant did not provide evidence of having applied for an AFP check with application – time of application – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 Home Affairs on 4 October 2021 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 17 March 2022 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

3. Ms Ethel Philomina Muroiwa, you applied for a subclass 485 temporary graduate post-study work stream visa on 10 March 2020. The delegate considered your case and found you did not meet the requirements for the grant of a visa and you appealed that decision to be reviewed by this Tribunal.

4. With your application, you included a copy of the primary decision which you told the Tribunal you had read and understood, and from our discussions today it is clear you understand why the decision was made.  To be eligible for the grant of a 485 visa, an applicant must satisfy a number of requirements set out in the regulations, one of those is 405.213 which says that when an application was made, it was accompanied by evidence the applicant had applied for an Australian Federal Police (audio malfunction).

5. (audio/hearing resumed) …. I was in the process of delivering a decision and had explained that to be eligible for a 485 visa, you have got to satisfy a number of requirements, including clause 485.213 which states that when an application was made, it was accompanied by evidence, the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.

6. When I read your primary decision, it says that when you filled in your application you declared you had not applied for a police check in the preceding 12 months and therefore, the delegate found you did not satisfy the requirements of 485.213.

7. You told the Tribunal you had recently graduated with your Masters degree in 2019, and you had been working, I think you said in IT, but you were not in a position to afford an agent and so, you prepared the application yourself.  When you came to the question as to whether or not you had applied for an AFP check, you answered it honestly by saying that you had not.

8. You make the point that English is not your first language and you also make the point that in the past when applying for visas, there have been a range of requirements such as health cover, medicals, et cetera, that when you’ve answered that you do not have those things, the department have contacted you and asked you to provide the required evidence. It was your understanding and expectation that is what would happen in this case.  You said that your previous experience was with your own student visa applications and visitor visas that you had applied for on behalf of family members.  You believed that the department would contact you, which they didn’t.

9. You have subsequently since receiving the decision, gone out and got an AFP clearance which shows that there are no discernible issues that would have in any way inhibited you from getting a visa.  And you say you can provide it, if needed.  And as I explained to you, this is not a matter in which the Tribunal has discretion.

10. The police check is a mandatory requirement that must be met at the time of lodging the subclass 485 post-study work stream visa application.  As you did not provide evidence of having applied for an AFP check with your application, you do not satisfy 485.213 and as that clause is not met, I find the criteria for the grant of a subclass 485 temporary graduate visa in the post study work stream are not met.

11. And therefore, it is the decision of this Tribunal to affirm the decision under review.  And this decision was made at 2.59 pm on this 17 March 2022. 

    DECISION

12. The Tribunal affirms the decision under review.

    Tim Connellan
    Member