Subramanayam (Migration)

[2018] AATA 1808

Subramanayam (Migration) [2018] AATA 1808 (30 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Latesh Subramanayam

CASE NUMBER:  1801854

DIBP REFERENCE(S):  BCC2017/4903358

MEMBER:Sheridan Lee

DATE:30 April 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 30 April 2018 at 3:39pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police Check – Delay in supplying Police check – Decision under review affirmed

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 18 January 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 21 December 2017. 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 his 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 13 April 2018 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 Bachelor of Commerce at Deakin University on 3 November 2017. Following completion of his study, he lodged an application for a subclass 485 visa with the Department of Home Affairs (the Department) on 21 December 2017.

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. On 7 and 27 April 2018, the applicant’s migration agent, Mr Kunal Janardan Patil made submissions in support of his application. The submissions outline that:

    ·the applicant arrived in Australia on 11 November 2014 on a student visa granted on 6 November 2014

    ·on 7 August 2017, in order to complete his studies, the applicant applied for an additional student visa to cover the remaining 4 months of his degree

    ·when the second student visa application was lodged, the Department contacted the applicant to provide additional information within 28 days

    ·the applicant supplied the information within the timeframe and on 16 November 2017 the subclass 500 visa was granted until 30 December 2017

    ·on 21 December 2017 the applicant lodged his subclass 485 visa application, with the ‘mindset’ that the Department would request any additional information required in order to process the application

    ·on 18 January 2018, the Department refused the application for a subclass 485 visa on the basis that it was not accompanied by evidence that the applicant had applied for an Australian Federal Police check.

11. The submissions further outline that the applicant was suffering financial hardship at the time of his visa application, did not use a migration agent and had misinterpreted the requirements based on previous interactions with the department. Mr Patil highlights that the online visa application form allows the applicant to proceed to lodgement without indicating that submission of an Australian Federal Police check is mandatory.

12. On 27 March 2018, the Australian Federal Police issued a certification that there were no disclosable court outcomes recorded against the applicant. The applicant has supplied the Tribunal with a copy of the certificate. 

13. In both written submissions and at the hearing, the applicant acknowledged that he made an error in his application and did not apply for the police check before the application was made. At the hearing, the applicant explained that due to his financial situation at the time of application, he could not afford to engage a migration agent.

14. The Tribunal accepts that the applicant failed to appreciate what was required to apply for the subclass 485 visa. The Tribunal further accepts that the applicant is dismayed that such a seemingly technical oversight could derail his Subclass 485 visa application, particularly since he subsequently obtained the required police check.

15. However, the Tribunal must find that as the visa application was not accompanied by 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 applicant does not satisfy cl.485.213. The applicable law does not give the Tribunal any power to waive or overlook the need to meet this requirement.

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.

    Sheridan Lee
    Member