Naeem (Migration)

[2020] AATA 2864

Naeem (Migration) [2020] AATA 2864 (3 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sheraz Naeem

CASE NUMBER:  1929993

HOME AFFAIRS REFERENCE(S):          BCC2019/4216338

MEMBER:Jennifer Cripps Watts

DATE:3 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 3 June 2020 3:15pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – evidence of having applied for Australian Federal Police (AFP) Checks did not accompany the visa application– AFP Check was applied for after the visa application was lodged –decision under review affirmed

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 Home Affairs (the delegate) on 17 October 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 25 August 2019. 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 when the visa application was made, it was not accompanied by evidence that the applicant had applied for an Australian Federal Police (AFP) Check during the 12 months immediately before the day of application.

4. The applicant applied for review and provided the Tribunal with a copy of the delegate’s decision and attended the Tribunal hearing by phone on 3 June 2020 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The determinative issue in the present case is the same as the reason the visa was refused; the applicant must meet cl.485.213 of Schedule 2 to the Regulations which requires that:

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

   (a)  the applicant; and

   (b)  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.

7. At the beginning of the hearing, it was explained to the applicant that the Tribunal, Federal Courts, and some other courts and tribunals, are currently conducting hearings by phone where it is appropriate due to the COVID-19 situation, and that his matter had been identified as suitable.  The Tribunal is satisfied that the audio was clear on throughout the hearing.

8. The requirements of cl.485.213 were explained to the applicant at the beginning of the hearing and reasons given why it appeared he did not satisfy cl.485.213.  The applicant gave oral evidence and the Tribunal has considered his evidence together information in the Department and Tribunal files, relevant to the material issue on the review in reaching its decision.

9. The Tribunal referred the applicant to his online visa application, generated on 25 August 2019, where he answered ‘No’ to the question:

   ‘Have you and all persons included in this application who are 16 years of age or over, applied in the last 12 months to the Australian Federal Police for a check of criminal records?’

10. At page 10. of 14. of the visa application, there is a section for an applicant to enter AFP Check details for ‘all persons included in this application’.  No information was entered.

11. The visa application was lodged online on 25 August 2020.  The applicant said the reason he did not apply for the AFP Check before he lodged the visa application was because he obtained advice from a friend and misunderstood, from that advice, that he could apply for the AFP Check after he lodged the application.  The applicant submits that it was an honest mistake.  The Tribunal accepts that it does appear to be the case and it is acknowledged that the applicant has provided an AFP Check dated 10 October 2019 that declares no disclosable court outcomes. 

12. The applicant gave oral evidence about his personal circumstances and the negative impact the visa refusal will have on his career.  He requested that, if possible, the Tribunal make a decision in his favour.  It was explained to him at the hearing that the Tribunal has no discretion to waive the requirements of cl.485.213 relating to an application for an AFP Check.  The applicant confirmed that he understood.

    Evidence relating to police checks

13. 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.

14. The Tribunal has considered evidence relevant to the issue on the review and finds that the applicant’s visa application was not accompanied by evidence that he had applied for a police check in the 12 months immediately before the date of the visa application.

15. Therefore the applicant does not satisfy cl.485.213.

16. 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

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

    Jennifer Cripps Watts
    Member