Poonam (Migration)

[2023] AATA 1059

Poonam (Migration) [2023] AATA 1059 (20 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Poonam

CASE NUMBER:  2212518

HOME AFFAIRS REFERENCE(S):          BCC2022/1347765

MEMBER:Wan Shum

DATE:20 April 2023

PLACE OF DECISION:  Sydney

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

Statement made on 20 April 2023 at 1:03pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal history – request for Australian Federal Police check prior to visa application – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2, cls 485.213, 485.232, 485.233; r 2.03

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 on 17 August 2022 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the Class VC visa on 20 April 2022. Visa Class VC contains Subclass 485 which has a Graduate Work and Post Graduate Work stream. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) which sets out primary and secondary criteria including general criteria and stream specific criteria. In this case, the criterion in dispute is a general criterion, clause 485.213, which 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. Clause 485.213(1) does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: cl 485.213(2).

3. The delegate refused to grant the visa because the applicant did not apply for the required Australian Federal Police check of criminal records in the relevant period before the visa application was lodged so did not satisfy cl 485.213 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal by videoconference using Microsoft Teams on 19 April 2023 to give evidence in support of her case. An interpreter was made available to assist where necessary.

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 application was accompanied by evidence that the applicant had applied to the Australian Federal police for a check of criminal records in the relevant period prior to the visa application. This requirement must be met unless the visa application is for a second Subclass 485 (Temporary Graduate) visa and meets the requirements of cl 485.232 or 485.233.

7. The applicant confirmed that she did not hold a Subclass 485 (Temporary Graduate) visa in the Post-Study Work stream when the application for the current visa was made. This means that she does not meets the requirements of cl 485.232 or 485.233, and cl 485.213(1) does apply so she needed to have applied for an Australian Federal Police check of criminal records in the 12 months immediately before the date of application and evidence of that needed to accompany the visa application.

8. On the visa application form, the applicant responded ‘no’ to the question “Have all applicants aged 16 years or over, applied in the last 12 months to the Australian Federal Police for a check of criminal records?”. There was no evidence provided with the application that the applicant had applied for an Australian Federal Police check in the 12 months immediately before the date of application. During the hearing the applicant explained that she had made the application herself and there had been an internet problem when she tried to upload evidence of having made the application for a Criminal History Check. The applicant claimed to have made that application on 14 December 2021. However, the results report of the “Nationally Coordinated Criminal History Check” dated 24 August 2022 that she has provided reflects that it was not issued by the Australian Federal Police and appears to have been obtained from the website “checked.com.au”. This was put to the applicant during the hearing. She conceded that she had not applied to the Australian Federal Police for a check of criminal records prior to the application for the visa.

9. The criterion is clearly worded such that the application to the Australian Federal Police for the check needed to be made in the 12 months immediately before the date of application.

10. In this case, the applicant has not provided evidence that an application for a check of criminal records was made to the Australian Federal Police in the 12 months immediately before the date of visa application. Therefore, while the applicant has provided a copy of an Australian Federal Police check dated 30 January 2023, the applicant does not meet the requirements of cl 485.213(1) and does not satisfy cl 485.213.

11. 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

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

    Wan Shum
    Member