VALLAPUREDDY (Migration)

[2021] AATA 1829

VALLAPUREDDY (Migration) [2021] AATA 1829 (8 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Srupi VALLAPUREDDY
Mr Sridhar Reddy Vallapureddy

CASE NUMBER:  1924050

DIBP REFERENCE(S):  BCC2019/3631686

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         8 April 2021 at 1:41 pm (VIC time)

DATE OF WRITTEN RECORD:                27 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 27 April 2021 at 6:02pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate Post Study Work) – Australian Federal Police Check – evidence of applying for checks – decision under review affirmed   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.213

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 26 August 2019 to refuse to grant the visa applicants Skilled (Provisional) (Class VC) Subclass 485 visas under the Migration Act 1958 (the Act).

2. At the hearing on 8 April 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mrs Vallapureddy, you told the Tribunal that you lodged an application for a 485 visa, which is a Temporary Graduate Post Study Work visa, having completed your Masters of Business Administration at the Charles Sturt University which is located in Darwin. 

4. Your application you made on 22 July 2019 and your application was refused on 26 August 2019 because the delegate found you did not meet a criterion in 485.213 which requires an application to be accompanied by evidence that everyone in the application over the age of 16 has applied for an Australian Federal Police Check in the 12 months before the date of the application. The delegate found you had not satisfied that requirement and refused your application, which you appealed to be reviewed by this Tribunal.  You included a copy of that primary decision and I read from it and it says:

   On 22 July 2019 the applicant lodged an online application for a temporary graduate  visa and declared "No" to the question, "Have you and all persons included in this application who are 16 years or over, applied in the last 12 months to the Australian Federal Police for a check of criminal records."

5. It goes on to say that when they assessed the application they found that no such record had been provided.

6. So the role of the Tribunal is to take a fresh look at your application and consider whether you are eligible for the grant of a 485 visa.   As I have said, satisfaction of 485.213 is a mandatory requirement and it is unambiguous.  It states that when the application was made it was accompanied by evidence that the applicant and each person included in the application who was at least 16 has applied for an Australian Federal Police check during the 12 months immediately before the application was made. 

7. It is your evidence to the Tribunal and the evidence on file that you did not do that and therefore you do not satisfy 485.213.   This is not a matter in which the Tribunal has discretion.  You have today told the Tribunal you previously had student visas which had not required you to have police clearances so you were unaware of the requirement and you did not know anything about it.

8. Well, I note that, but nonetheless, as it says in the decision, in your application you were asked a specific question whether you had applied for a police clearance. To that question you answered "No". The Tribunal believes it must have raised suspicion about the requirement for you to have made such an application and I am afraid the fact that you now claim you did not know about the requirement does not relieve your obligation to satisfy it.

9. As I said, the requirement is unambiguous and it is not a matter in which the Tribunal has discretion.

10. Having considered your circumstances and the evidence available, the Tribunal finds that you do not satisfy Clause 485.213, consequently the decision under review must be affirmed.  It is therefore the decision of this Tribunal to affirm the decision under review.

11. This decision was made at 1.41 pm on 8 April 2021.

    DECISION

12. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member