Zanetti (Migration)

[2017] AATA 970

Zanetti (Migration) [2017] AATA 970 (13 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stefano Zanetti

CASE NUMBER:  1705337

DIBP REFERENCE(S):  BCC2017/184014

MEMBER:D. Dimitriadis

DATE:13 June 2017

PLACE OF DECISION:  Sydney

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

Statement made on 13 June 2017 at 9:21am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Temporary Graduate – Character references provided – Australian Federal Police check not provided – Tribunal has no discretion

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 13 March 2017 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 14 January 2017. Visa Class VC contains Subclass 485. 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 application was made, it was not 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.

4. The applicant appeared before the Tribunal on 9 June 2017 to give evidence and present arguments.  

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 satisfies cl.485.213.

   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. In the visa application, the applicant answered “No” 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?’

9. The delegate refused the visa on the basis that the applicant did not satisfy cl.485.213 and stated that the applicant did not provide any additional documentation at time of application to indicate that he had applied for an Australian Federal Police check prior to the lodgement of his visa application.

10. The applicant provided a number of documents to the Tribunal including copies of the delegate’s decision record, a National Police Certificate dated 13 March 2017 from the NSW Police Force and a statement from the applicant that he misinterpreted the requirements and misunderstood the insufficiency of his claim.

11. At the hearing the applicant provided a number of documents including character references, residential tenancy agreement dated 14 March 2016 and letter from his partner, Marion Grunert.  

12. The Tribunal acknowledges that the applicant has studied in Australia and has achieved a Master of International Business and a Graduate Certificate of Business. The Tribunal has also had regard to the evidence that the applicant is in a relationship with his Australian partner who has provided a letter in support. The Tribunal acknowledges the character references which indicate that the applicant is valued here and has support in the community. However, the Tribunal is unable to take into consideration any extenuating circumstances. The Tribunal does not have any discretion in this case and the applicant has to satisfy cl.485.213.

13. The Tribunal finds that when 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, had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.

14. 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.

    D. Dimitriadis
    Member