Othman (Migration)

[2017] AATA 1604

Othman (Migration) [2017] AATA 1604 (18 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nur Anis Binti Othman

CASE NUMBER:  1706548

DIBP REFERENCE(S):  BCC2017/325127

MEMBER:Rania Skaros

DATE:18 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 18 September 2017 at 9:22am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Australian Federal Police check– Applicant provided evidence of AFP clearance – Applicant doesn’t meet cl.485.213

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 16 March 2017 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 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 visa because the applicant did not satisfy cl.485213 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 check in the 12 months immediately before the day the application was made.

4. The applicant appeared before the Tribunal on 6 September 2017 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 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 that she had not applied for an AFP check in the relevant period and no information was provided with the application indicated that she had done so. On this basis, the delegate proceeded to refuse the application.

9. On review the applicant provided a statutory declaration in which she submitted that she did not intend to declare ‘no’ in the visa application form regarding having applied for a criminal records check with the AFP in the last 12 months. She stated that this was an error and she meant to state ‘yes’ in the form and she has a reference number CR714383 and the check expires on 4 March 2019 and she will provide evidence of this document. The applicant provided a copy of an email from her employer dated 23 March 2017 advising that her criminal record check (CR714383) has cleared and shows no disclosable court outcomes.

10. At the hearing, the Tribunal explained to the applicant the requirements in cl.485.213 and the evidence before it which indicates that she does not meet the requirements. The Tribunal noted that even if it was to accept that she applied for the police check, she had not provided evidence with the application to demonstrate that she had applied for the check in the 12 months immediately before the application was made. In response, the applicant stated that she applied for the check online and has provided to the Tribunal the reference number and expiry date of the check. She stated that she does not have a physical copy because it was done by her employer and she has not been able to get it. The Tribunal again explained to the applicant that evidence demonstrating that she had applied for the police check in the 12 months immediately before the application was lodged had to have accompanied, that is provided with, the visa application. It explained that the evidence that was provided to the Tribunal does not demonstrate that the AFP check had been applied for before the visa application was made, and even if it was to accept that her employer had applied for a police check on her behalf, evidence of that application for a police check was not provided with the visa application. The applicant indicated that she is not sure what she should do. The Tribunal explained to her that she should seek advice about her options and that the Tribunal had no discretion in the circumstances and would likely find that she does not meet the requirements.

11. As noted above, cl.485.213 requires the applicant 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. The Tribunal acknowledges the applicant’s evidence that her employer applied for the police check on her behalf and has had regard to the email from the employer indicating the same. However, no evidence had been provided with the application to show that the AFP check had been applied for in the 12 months immediately before the application was lodged.

12. Given the above, the Tribunal finds that, when the visa application was made, it was not accompanied by evidence that the applicant 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. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

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

    Rania Skaros
    Member