SHUVO (Migration)

[2019] AATA 2863

SHUVO (Migration) [2019] AATA 2863 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohsinur Rahman SHUVO

CASE NUMBER:  1810546

HOME AFFAIRS REFERENCE(S):           BCC2018/435043

MEMBER:Wan Shum

DATE:26 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 26 February 2019 at 3:52pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police check not provided – not applied for check 12 months immediately before date of visa application – National Police Check provided in error – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Home Affairs on 6 April 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 25 January 2018. 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).

3. The delegate was not satisfied that the applicant had applied for the appropriate Australian Federal Police check and refused to grant the visa finding that the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations.

4. The applicant has sought review of that decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the application 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 (AFP) check during the 12 months immediately before the day the application is made as required by cl.485.213.

7. As set out in the delegate’s decision, the applicant had indicated on the visa application form that he had applied for an AFP check of criminal records in the 12 months prior.

8. The delegate requested the applicant apply for a complete disclosure check and the applicant provided a copy of a National Police Certificate issued by the NSW Police. The delegate found that the applicant did not satisfy the requirements of Regulation 485.213 “[a]s the applicant did not apply for the appropriate Australian Federal Police clearance during the 12 months immediately before the day they lodged their visa application.”

9. On review, the applicant has provided a Complete Disclosure National Police Certificate issued by the AFP dated 27 March 2018 indicating that there are no disclosable court outcomes recorded against his name.

10. During the hearing, the applicant confirmed that he did not apply to the AFP until after he received the letter from the Department. The date of that application indicates that the applicant applied to the AFP promptly upon receipt of that letter, however, it appears that he had not provided the AFP check prior to the decision being made to refuse his visa because his passport was due to expire and there were some delays in providing the relevant documentation and details. The Tribunal indicated at the hearing that it was unable to make a favourable finding in the circumstances.

11. While the applicant had made an application for a police check in the 12 months before his visa application was made, it was not for an Australian Federal Police check as required by cl.485.213. The applicant was given an opportunity by the Department to provide the correct check, but did not provide the results of that check by the date allowed.

12. On the evidence before the Tribunal, the applicant had not applied for an AFP check during the 12 months immediately before the day his application was made. In the circumstances, it cannot be said that his application was accompanied by evidence of having applied for an Australian Federal Police check in the 12 months before his visa application was made as required by cl.485.213. 

13. The Tribunal accepts that the applicant’s failure to provide evidence of having applied for an AFP check at the time he made his Subclass 485 visa application was due to a misunderstanding on his part of the requirements involved in making such an application, specifically the need for evidence of having applied for an AFP check and not a National Police Check from NSW Police. Based on the date of the AFP check, the Tribunal finds that he had applied for the AFP check after he received the department’s letter. The check confirmed that there were no disclosable outcomes in respect of the applicant. Given that he was sent a letter from the Department with detailed instructions on how to apply for this check, it appears that the Department may have accepted the National Police Certificate issued by the AFP if he had responded within the 28 days allowed. It is unclear to the Tribunal on what basis this would have met the requirements of cl.485.213 which require the applicant to apply for the AFP check in the 12 months before the visa application was made. There is no evidence before the Tribunal that the applicant had applied for the AFP check in the 12 months before the visa application was made. Furthermore, the Tribunal does not have any discretion to waive the requirement that the applicant meets cl.485.213 of Schedule 2 of the Regulations.

14. The applicant asked the Tribunal not to make a decision until March/April 2019 so that he could complete his internship and NAATI accreditation. The Tribunal notes that the CCL testing he wished to take is carried out by NAATI and can only be taken in Australia. The Tribunal noted that the next two sets of testing dates were in December 2018 and 18 to 22 February 2019. These dates have now passed and it is proceeding to a decision.

15. On the evidence before the Tribunal, the applicant does not satisfy cl.485.213.

16. 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

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

    Wan Shum
    Member