Tseveleva (Migration)

[2019] AATA 4596

Tseveleva (Migration) [2019] AATA 4596 (11 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mariia Tseveleva

CASE NUMBER:  1922806

HOME AFFAIRS REFERENCE(S):           BCC2019/1274841

MEMBER:Warren Stooke AM

DATE:11 September 2019

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; and

·cl.485.216 of Schedule 2 to the Regulations.

Statement made on 11 September 2019 at 2:30pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – criminal check – evidence provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 485.213, 485.216

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 July 2019 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 13 March 2019. 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.485.216 of Schedule 2 to the Regulations on the basis that the applicant had not provided a ‘complete disclosure’ Australian Federal Police for a check of criminal records at the time of decision.

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

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 applicant has provided a ‘complete disclosure’ Australian Federal Police for a check of criminal records to support the application for the grant of a Skilled (Provisional) (Class VC) visa.

   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. On 3 August 2019, the applicant provided the Tribunal with a ‘complete disclosure’ Australian Federal Police for a check of criminal records, which was dated 3 August 2019. [Tribunal File: Folio 6]

9. Therefore the applicant satisfies cl.485.213.

10. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

11. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.213 of Schedule 2 to the Regulations; and

    ·cl.485.216 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member