Ranjalker (Migration)

[2018] AATA 1442

Ranjalker (Migration) [2018] AATA 1442 (10 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anirudh Ranjalker

CASE NUMBER:  1712703

DIBP REFERENCE(S):  BCC2017/1428883

MEMBER:Cathrine Burnett-Wake

DATE:10 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 10 May 2018 at 1:59pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian police check requirements – Did not apply for a police check prior to lodging the application – Applicant unable to satisfy cl 485.213

LEGISLATION
Migration Regulations 1994, 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 26 May 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 19 April 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.485.213 of Schedule 2 to the Regulations because the applicant had not applied for an Australian Federal Police check during the 12 months immediately before the day he lodged his visa application.

4. The applicant appeared before the Tribunal on 11 April 2018 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 applied for an Australian Federal Police clearance during the 12 months immediately before the day the visa application was made.

   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. At hearing the applicant conceded that he had not applied for an Australian Federal police check during the 12 months immediately before the day the application was made.  He outlined when he submitted the application, he was not aware that he was required to have already applied for an Australian Federal police check. The applicant outlined that he did not have any assistance from a migration agent to submit his application and was under the impression that after he lodged the application he would receive a checklist from the Department listing the documents that were required. The Tribunal pointed out to the applicant, that even if this was the case, a checklist sent after the application was lodged would not assist him in this instance, as he had not applied for the police check before lodging the application.

9. At hearing the Tribunal explained to the applicant the subclause under review: cl.485.213 is explicit that he must have applied for an Australian Federal Police check during 12 months immediately before the day the application was made, and that the Tribunal had no discretion to waive that requirement.

10. As the facts of the case are not under dispute, and all parties agree that the applicant had not applied for an Australian Federal Police check during 12 months immediately before the day the application was made, the Tribunal therefore concludes the applicant 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.

    Cathrine Burnett-Wake
    Member