Venkatesh Sulugodu (Migration)

[2019] AATA 2327

Venkatesh Sulugodu (Migration) [2019] AATA 2327 (7 March 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Dhanya Venkatesh Sulugodu

CASE NUMBER:  1810195

DIBP REFERENCE(S):  BCC2018/1019883

MEMBER:  K. Chapman

DATE AND TIME OF

ORAL DECISION AND REASONS:          7 March 2019 at 11:15 am (QLD time)

DATE OF WRITTEN RECORD:                22 March 2019

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decision not to grant the

applicant a Skilled (Provisional) (Class VC) visa.

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police check – dated after the time of visa application – Departmental website – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.213

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 April 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (‘the Act’).

2. At the hearing on 7 March 2019 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. The applicant applied for the visa on 3 March 2018. 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.

   The delegate refused to grant the visa on 3 April 2018 on the basis that the applicant did not satisfy clause 485.213 of Schedule 2 to the Regulations, because in their view, at the time the visa application was made, it was not accompanied by evidence that the applicant and each person included in the application who is at least 16 years of age, 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 7 March 2019 to give evidence and present arguments. There was one observer present.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 years of age, had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.

6. During the review hearing, the applicant was invited to provide evidence in support of her application for review. When asked by the Tribunal if she and each person included in the visa application who was at least 16 years of age applied for an Australian Federal Police check, during the 12 months immediately before the day the Subclass 485 visa application was made, the applicant advised that she did not.

7. The Tribunal raised with the applicant that she answered "No" to the following question in the visa application, ‘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?’ The Tribunal indicated that her answer to this question seemed to confirm her earlier oral evidence that she had not applied for the police check in the requisite time frame. The applicant confirmed this was the case, that is, that she did not apply for the Australian Federal Police check in the 12 months prior to lodging the Subclass 485 visa application.

8. The Tribunal raised with the applicant that the Australian Federal Police check she submitted is dated after the time of the visa application and that there is no documentary evidence, such as a receipt or financial records, indicating she applied for the necessary police check during the 12 months immediately before the day the application was made. The Tribunal

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indicated that this might tend to suggest the applicant did not meet the requirements for the visa, inviting her comment.

1. The applicant responded by advising the Tribunal that she had just completed her degree at that time, she had a job and she was unable to apply for the clearance due to family problems. She indicated that her Student visa was expiring so she applied for the Subclass 485 visa thinking that she would have more time to lodge further documentation. She knows that she made a mistake and stated that she did not want to have her visa refused because that would have negative implications for her. She stated she has friends, family and a partner here in Brisbane and she wants to remain here. She told the Tribunal she works as a web designer and indicated she wants to maintain her life in Brisbane.

2. The Tribunal drew to the applicant's attention that she had earlier written to it admitting that she made a mistake by not attaching a police check to her visa application, inviting her comment on that matter. The applicant advised that she was going through a lot of things at that time.

3. The Tribunal invited the applicant to provide further evidence about the decision to refuse to grant her the Subclass 485 visa. She advised again that her life is in Brisbane. She indicated she came as a student, completed her Masters of Interactive Media at Griffith University and she did so on time. She confirmed that she is now working as a web designer. She found her partner in Australia recently and her life is here in Brisbane. She again stated that a visa refusal will create a big disadvantage for her.

4. The Tribunal again provided an opportunity for the applicant to provide any further evidence that she wished. The applicant conferred with the observer, at which point the Tribunal granted a short adjournment for her to consider whether she had any further information to provide.

5. Following the adjournment, the applicant told the Tribunal that there was nothing in the Departmental website to indicate how to apply for the police check and she contended that she was not given a proper instruction on the Departmental website as to how to properly apply concerning this matter.

6. The Tribunal drew the applicant's attention to the question in her visa application form which related to the Australian Federal Police clearance. The Tribunal drew to the applicant's attention that at the top of the form it states, ‘To be eligible to be granted a Subclass 485 visa through the Post Work Study Stream you must have already taken steps to meet certain requirements and obtained documentation before you lodge your application. If you do not meet the requirements below you may not be able to lodge or to be granted a visa.’ The Tribunal then drew her attention to the question she answered "No" to, which was, ‘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?’ The Tribunal drew to the applicant's attention that this question seems to be phrased in such a way as to alert her to the requirement to have applied for the police check, inviting her comment. She advised the Tribunal that the Department website did not prevent her from proceeding further with the application and in essence maintained that the website was unhelpful in this regard. The Tribunal has carefully considered her evidence on this point.

7. Prior to the conclusion of the review hearing, the Tribunal checked with the applicant whether she had any further evidence to provide and the applicant confirmed to the Tribunal that she had no further evidence to provide, following which her hearing was concluded.

8. The Tribunal notes that the applicant applied for the visa on 3 March 2018 and provided to the Tribunal a copy of a complete disclosure National Police Certificate dated 11 April 2018

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issued by the Australian Federal Police. The certificate indicates there are no disclosable court outcomes recorded against the applicant's name.

1. The Tribunal notes that the applicant accepted she did not apply for the police check before the day she applied for the Subclass 485 visa. She initially advised she did not apply in time due to personal issues that revolved around her family situation. The Tribunal notes that she later added that she found the Department's website to be unhelpful in providing her guidance on how to apply for the visa with respect to the Australian Federal Police check component.

2. The Tribunal notes that the applicant conceded in correspondence to the Tribunal before the hearing, and in her initial oral evidence, that she did not actually make the application for the police check until after she had applied for the Subclass 485 visa. She accepted this was her mistake notwithstanding that she later contended that the Departmental website was not helpful and played some role in her situation.

3. The Tribunal also notes the applicant declared in her visa application that she had not applied in the last 12 months prior to the application for the Subclass 485 visa to the Australian Federal Police for a check of criminal records.

4. The Tribunal has very carefully considered all of the evidence in this matter. The Tribunal notes that it must apply the law to the facts of this matter in an impartial and dispassionate fashion, even if the result is upsetting to the applicant.

5. Having carefully considered the evidence, the Tribunal finds that at the time the Subclass 485 application was made it was not accompanied by evidence that the applicant and each person included in the application who is at least 16 years of age had applied for an Australian Federal Police check, during the 12 months immediately before the day the visa application was made. Therefore the applicant does not satisfy Clause 485.213.

6. 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

7. The Tribunal, constituted by Member Chapman, affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

   K. Chapman
   Member

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