Yang (Migration)

[2018] AATA 5278

Yang (Migration) [2018] AATA 5278 (20 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hao Yang

CASE NUMBER:  1814973

DIBP REFERENCE(S):  BCC2018/1189859

MEMBER:Wan Shum

DATE:20 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 20 November 2018 at 10:36am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police check – 12 months immediately before visa application – innocent mistake ­– no discretion – 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 Immigration on 11 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 13 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 declared that he did not apply for the Australian Federal Police check in the 12 months prior to the application being made on his visa application form. The delegate found that the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 14 November 2018 to give evidence and present arguments. His sister also attended as a witness.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements of cl.485.213 of Schedule 2 to the Regulations

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. In response to the 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?” on the online Subclass 485 visa application form, the applicant answered “No”.  The delegate proceeded to find that the applicant did not satisfy cl.485.213.

9. At the hearing, the applicant confirmed that he had not applied for a police check before he made the visa application. He stated that his student visa was about to expire, and he had thought he could hand in the police check at a later stage. The applicant referred to being allowed to proceed with his application even though he had responded in the negative, stating his belief that he was misled by the online application system and also that there was a fault in the system. He said that he was unaware of the significance of this requirement. The Tribunal indicated that it was unable to make a favourable finding in the circumstances. The applicant’s sister who had attended as a witness did not give any evidence but asked some questions regarding the process from here on in.
   

10. On the evidence before the Tribunal, the applicant had not applied for an AFP check during the 12 months immediately before the day his application was made. There is thus no dispute that the application was not accompanied by evidence of having applied for an Australian Federal Police check as required by cl.485.213. 

11. The Tribunal accepts that the applicant’s failure to make an application for an AFP check before lodging his Subclass 485 visa application was based on a misunderstanding. It notes that he applied for the check shortly after the visa application was refused and that the check confirmed that there were no disclosable outcomes. However, it does not have any discretion to waive the requirement that the applicant meets cl.485.213 of Schedule 2 of the Regulations.

12. On the evidence before the Tribunal, the applicant does not satisfy cl.485.213.

13. 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

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

    Wan Shum
    Member