Suraj (Migration)

[2018] AATA 5745

Suraj (Migration) [2018] AATA 5745 (5 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sapkota Suraj

CASE NUMBER:  1817282

HOME AFFAIRS REFERENCE(S):           BCC2018/1047457

MEMBER:R. Skaros

DATE:5 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 November 2018 at 1:00pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police check – applied after date of visa application – 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 31 May 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 5 March 2018. 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 when the visa application was made, it was not accompanied by evidence that the applicant had applied for an Australian Federal Police check in the 12 months immediately before the day the application was made.

4. A copy of the delegate’s decision record was provided with the application for review.

5. The applicant appeared before the Tribunal on 1 November 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of cl.485.213.

   Evidence relating to police checks

8. 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.

9. In the visa application form, the applicant indicated that he had not applied for an AFP check in the relevant period. On 8 March 2018, the applicant provided to the Department an AFP receipt indicating that he had applied for the AFP check on 7 March 2018. As the evidence indicated that the applicant had applied for the AFP check after the date of application, the delegate found that the applicant did not meet the requirements of cl.485.213.

10. On review, the applicant provided a number of documents which relevantly included an AFP check dated 9 March 2018.

11. At the hearing, the Tribunal explained to the applicant the requirements in cl.485.213 and discussed with him the evidence before it which indicates he does not meet the requirements. In response, the applicant stated that he lodged the application without any assistance from a migration agent. He ticked ‘no’ on the application form because he was careful not to provide any false or misleading information. He stated that after searching online he realised that he needed to have an AFP check so he promptly applied for the police check on 8 March 2018. He stated that he did not realise that the AFP was required before the application.

12. The Tribunal has considered the applicant’s evidence however, as explained to him at the hearing, he had to have applied for the AFP check in the 12 months immediately before the application for the Subclass 485 visa was made. The Tribunal acknowledges that the applicant provided evidence within a few days of the application having been made which shows that he did apply for an AFP check. The evidence however indicates that the AFP check was applied for after the visa application was made and not in the 12 months immediately before the visa application was made.

13. Clause 485.213 requires the applicant to have applied for an AFP check in the 12 months immediately before the date of application and to have provided evidence of the same with the application. It is not in dispute that the applicant in this case had not applied for the police check in the 12 months immediately before the date of the application. 

14. Given the above, the Tribunal finds that, when the visa application was made, it was not accompanied by evidence that the applicant had applied for an AFP check during the 12 months immediately before the day the application was made. Therefore the applicant does not satisfy cl.485.213.

15. 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

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

    R. Skaros
    Member