PRABHUDEVA (Migration)

[2019] AATA 305

PRABHUDEVA (Migration) [2019] AATA 305 (8 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HRUSHIKESH PRABHUDEVA

CASE NUMBER:  1817178

DIBP REFERENCE(S):  BCC2018/951966

MEMBER:Jennifer Cripps Watts

DATE:8 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 08 February 2019 at 4:05pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – character requirements – incorrect police check clearance submitted – no AFP check at time of application – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA Schedule 2 cls 485.213, 485.216 Schedule 4 PIC 4001

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 (the delegate) 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 28 February 2018. The criteria for a Skilled (Provisional) (Class VC) visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. To meet cl.485.213 of Schedule 2 to the Regulations, the visa application must be accompanied by evidence that each applicant and each person included in the application who is at least 16 has applied for an Australian Federal Police check (AFP Check). This was explained to the applicant at the beginning of the hearing.

4. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: r.2.03AA(1). In this case, cl.485.216(1) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001, among other character requirements. To meet PIC 4001 the applicant is required to satisfy the criterion in r.2.03AA(2).

5. Regulation 2.03AA(2)(a) requires that, if requested, the applicant provides a statement from an appropriate authority in a country where the person resides or has resided that provides evidence about whether or not the person has a criminal history. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal may waive the requirement in r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

6. The delegate refused to grant the visa on 29 May 2018 on the basis that the applicant did not meet r.2.03AA because he did not provide an Australian Federal Police Complete Disclosure certificate (AFP Complete Disclosure Certificate) when it was requested.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant indicated in his visa application that he had applied for an AFP Check, as required by cl.485.213 of Schedule 2 to the Regulations. The delegate requested that the applicant provide a statement from an appropriate authority, described in the request as an AFP Complete Disclosure Certificate. The applicant provided a police check from a company called InterCheck, not an AFP Complete Disclosure Certificate as requested.

9. It was explained to the applicant at the hearing that he must have provided information that he had applied for an AFP Check during the 12 months immediately before the application is made:  cl.485.213.  

   Has the applicant provided a statement from an appropriate authority?

10. The applicant applied for the Subclass 485 visa that is the subject of this review on 28 February 2018.  In the visa application were the following questions and answers:

    ‘Q: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?

    A:       Yes.

    Q:Provide Australian Federal Police check details for all persons included in this application who are 16 years of age or over.

    A:       Name  Hrushikesh Prabhudeva

    Date of Request 16 Jan 2018

    Reference Number       182353’

11. A requirement of cl.485.216 of Schedule 2 to the Regulations is that an applicant for a Subclass 485 visa must satisfy, relevantly, the character requirement PIC 4001. Criteria for application character tests and security assessments is set out in r.2.03AA of the Regulations: the Minister may request a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history.

12. On 27 March 2018 the application was assessed and the Department sent the applicant an email requesting that he provide evidence of an appropriate statement, described as his AFP Check (that he indicated he had applied for the application).  A ‘Request Detail’ document and checklist of the information being requested was attached.  Specifically, in the ‘Request Detail’ document, it is stated that an ‘Australian Federal Police (AFP) National Police Check’ is required and that it needs to be a ‘Complete Disclosure AFP National Police Certificate’.  A weblink is provided and, in the alternative, a phone number for applicants who do not have internet access.  The applicant was also informed in the attached ‘Request Detail’ document that if he was unable to obtain a ‘Complete Disclosure AFP National Police Certificate’, he should demonstrate, with documentary evidence if possible, that he had made a genuine attempt to obtain it.  It was also included in the document that if the applicant does not provide the ‘Complete Disclosure AFP National Police Certificate’ the application may be refused.

13. On 29 March 2018, the applicant provided an InterCheck National Criminal History Check, dated 16 January 2018, with the reference number 182353.  This is the same reference number provided in his visa application.  The applicant confirmed at the hearing that the reference number, 182353, referred to the InterCheck National Criminal History Check.  It is included on the form that the InterCheck search is done by Australian Criminal Investigations Commission (ACIC) that conducts a search of police information held by it and Australian police agencies relating to the applicant.  On the form, it specifically says, ‘…this national coordinated criminal history check may not include all police information about the applicant.’

14. The criminal history check the applicant provided is not an AFP Complete Disclosure Certificate, which was the statement from an appropriate authority that was requested of him.  The Tribunal is not satisfied that the receipt or reference that he provided with his visa application relates to an AFP Check – it relates to the InterCheck national police check document.  The applicant has provided the Tribunal with an AFP Check dated 13 July 2018, issued about two months after the applicant had been notified that his visa was refused.  He said he was told to provide it to the Tribunal by a migration agent.  It has been considered, as has the oral evidence the applicant gave at the hearing. 

15. The applicant confirmed at the hearing that it was the InterCheck national police check that he had applied for when he lodged the visa application and that it was the InterCheck police check that he provided when the AFP Check was requested.

16. On the evidence before the Tribunal, the Tribunal finds that the visa application was not accompanied by evidence that the applicant had applied for an AFP Check during the 12 months immediately before the day the visa application was made.  The AFP Check the applicant has provided to the Tribunal is dated 13 July 2018 and was applied for, on the applicant’s evidence, after the visa was refused.  He had not applied for an AFP Check at the time he made the visa application.  The applicant does not therefore meet cl.485.213 of the Regulations. 

    Conclusion

17. On the basis of the above findings, the applicant does not meet cl.485.213.

18. 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

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

    Jennifer Cripps Watts
    Member