Ren (Migration)

[2018] AATA 2980

Ren (Migration) [2018] AATA 2980 (2 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yu Ren

CASE NUMBER:  1810816

DIBP REFERENCE(S):  BCC2018/1103226

MEMBER:Sheridan Lee

DATE:2 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.213 of Schedule 2 to the Regulations.

Statement made on 02 July 2018 at 3:59pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Australian Federal Police check provided – Police check reference provided in application – Decision under review remitted

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 13 April 2018 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 8 March 2018. Visa Class VC contains Subclass 485. 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 on the basis that the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations as her visa application was not accompanied by evidence that he had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made.

4. The applicant appeared before the Tribunal on 25 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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. The applicant completed a Master of Finance at Melbourne University in 2017. Following completion of her study, she lodged an application for a subclass 485 visa with the Department of Home Affairs (the Department).

9. The Tribunal has before it a copy of the application form, on which the applicant declared ‘No’ to the following 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. The applicant’s response to this question was determinative of her visa application. Departmental records show that the delegate assessed the application on 13 April 2018 and noted the applicant’s response and that no additional documentation was provided with the application to indicate that she had applied for an Australian Federal Police check. The department made no contact with the applicant to request further information in support of the application.

11. However, on the section of the application form titled ‘Australian Federal Police check’ the applicant provided a reference number for a police check and listed the date of request as 7 March 2018, the day prior to lodging the visa application.

12. At the hearing, the applicant gave evidence that she had selected ‘No’ in response to the question regarding whether she had applied for the police check in error. As she was never contacted by the Department prior to the date of decision, she was unaware of her error until that time.

13. The applicant has supplied the Tribunal with a copy of the receipt for her National Police Check application lodged with the Australian Federal Police. The details of the receipt confirm that she applied for the police check on 7 March 2018 and the receipt number corresponds to the number listed on her visa application form.

14. The Tribunal accepts the applicant’s account of events and notes that despite answering the question incorrectly, she listed the relevant details for her police check application on the visa application form. The Tribunal finds that this information amounts to evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made. The information was listed on the application form and therefore accompanied the visa application.

15. As such the applicant satisfies cl.485.213 and the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

16. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.213 of Schedule 2 to the Regulations.

    Sheridan Lee
    Member