Siavoshi (Migration)

[2019] AATA 5591

Siavoshi (Migration) [2019] AATA 5591 (11 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Arash Siavoshi
Mrs Aida Esfanjani

CASE NUMBER:  1916027

HOME AFFAIRS REFERENCE(S):          BCC2019/1531956

MEMBER:Jennifer Cripps Watts

DATE:11 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 11 December 2019 at 12:41pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – non-appearance before the Tribunal – Australian Federal Police check  – not accompanied by required evidence  – applied for AFP check after application lodgement – 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 (the delegate) on 29 May 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 27 March 2019. 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 because the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations because when the application was made, it was not accompanied by evidence that the applicant had applied for an Australian Federal Police check (AFP check) during the 12 months immediately before the day the application was made.

4. On 19 June 2019, the applicants applied to the Tribunal for merits review and provided a copy of the delegate’s decision with the review application, together with additional documents.

5. On 21 October 2019, the Tribunal sent the applicants an invitation to attend a hearing to give oral evidence and present arguments scheduled on 11 December 2019.  The invitation was sent to the email address provided by the applicant when the review application was made.  The applicant has not informed the Tribunal of any change to their contact details since then.  In the invitation the applicant was informed they could provide additional evidence and that they should let the Tribunal know if they were going to attend the hearing.  No response was received.

6. The applicants did not request a postponement.  They did not attend the hearing scheduled at 10:30am on 11 December 2019 and provided no reason for the non-attendance.

7. In the circumstances, the Tribunal has proceeded to make a decision on the evidence before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets cl.485.213 of Schedule 2 to the Regulations.

10. To be granted a Subclass 485 visa an applicant must meet all the primary criteria including, relevantly, cl.485.213, which requires that when the application was made, it was accompanied by evidence that the applicant had applied for an AFP Check during the 12 months immediately before the visa day the application was made.  This can be in the form of a receipt or reference number and there is an opportunity to provide this information in the online application form.  This is the substantive issue on which the applicant’s visa was refused.  A copy of the delegate’s decision was provided to the Tribunal.

    Evidence relating to police checks

11. 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.

12. An applicant is not required to provide an AFP Check with the visa application, but evidence that they have applied for an AFP Check needs to accompany the application and is required for them to meet cl.485.213.

    The applicant’s evidence relating to the police check

13. The applicant applied for the Subclass 485 visa that is the subject of this review on 27 March 2019. 

14. In the applicant’s online application, the following question and answer appears:

    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.        No.

15. The applicant has submitted in a letter provided with the review application, by way of explanation as to why evidence of having applied for AFP Checks did not accompany the application, that the visa conditions and description page are ‘unclear and ambiguous’ and that he understood that (the delegate) would ask for him to provide the police certificates after the visa application.  The applicant requests that the Tribunal waive the requirement that he meets cl.485.213.  His comments and request have been considered.

16. The Tribunal acknowledges that the applicant has provided evidence of the birth of a baby in early 2019.  The copy of the New South Wales Birth Certificate that has been provided indicates the applicants to be the baby’s parents.  

17. The visa application was made on 27 March 2019 and the visas were refused on 29 May 2019.  The applicant provided the Tribunal with receipts for the AFP Checks, dated 18 June 2019 and a copy of acknowledgement of the applications from the AFP, also dated 18 June 2019, which the Tribunal considers to be evidence that the applicant applied for the AFP Checks for himself and the secondary applicant (who is over 16) after the visas had been refused.

18. There is no evidence before the Tribunal that the applicants’ visa application was accompanied by evidence that they had applied for AFP Police Checks during the 12 months immediately before the day the visa application was made.

19. Therefore the applicant does not satisfy cl.485.213.

20. 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.

    Secondary Applicant

21. The secondary applicant made a combined application for the visa on the basis of being a member of the family unit of the applicant.  As the Tribunal has affirmed the decision to refuse the applicant’s visa, the decision to refuse the visa of the secondary applicant must also be affirmed.

    DECISION

22. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Jennifer Cripps Watts
    Member