1510886 (Migration)

[2016] AATA 4444

1510886 (Migration) [2016] AATA 4444 (27 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vihari Mikkilineni

CASE NUMBER:  1510886

DIBP REFERENCE(S):  BCC2015/1343900

MEMBER:Alison Mercer

DATE:27 September 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 27 September 2016 at 4:57pm

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 23 July 2015 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 9 May 2015. 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.485.213 of Schedule 2 to the Regulations, which required that, when the application was made, it was accompanied by evidence that the applicant had applied for an Australian Federal Police (AFP) check during the 12 months immediately before the day on which the application was made. The delegate noted that the applicant stated ‘no’ to the question in the online form of whether he had applied for an AFP clearance in the last 12 months, and when requested to provide evidence of this on 19 June 2015, provided a receipt issued by the AFP on 15 July 2015. As this indicated that the applicant only applied for an AFP clearance after lodging the visa application, the delegate found that he did not meet cl.485.213 and could not be granted a subclass 485 visa.

4. The Tribunal received a review application from the applicant on 11 August 2015, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Danny Mak, as his representative and authorised recipient for correspondence for the purposes of the review.

5. On 16 October 2015, the Tribunal received a number of documents from the applicant’s agent, including 2 AFP clearances, one issued on 10 June 2014 and the second issued on 15 July 2015.

6. On 17 July 2016, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing on 2 September 2016.

7. The applicant appeared before the Tribunal on 2 September 2016 to give evidence and present arguments. The Tribunal also received submissions from the applicant’s agent. 

8. The applicant stated that he had obtained an AFP clearance prior to making his subclass 485 visa application (issued by the AFP on 10 June 2014), and believed that his agent had uploaded this when he made his subclass 485 visa application online.  When asked why he then answered ‘no’ to the question in the online visa application asking whether he had applied for an AFP clearance in the preceding 12 months, the applicant’s agent stated that he believed that he (the agent) had mistakenly answered ‘no’ when he completed the online visa application on behalf of the applicant and that both he and the applicant failed to notice this before it was lodged.  The applicant and his agent argued that subsequently, they received the Department’s request to provide an AFP clearance and assumed that the old one was deemed to have expired, and therefore that the applicant had to provide another one.  He applied for this on 15 July 2015, and provided evidence of this to the Department.  He also provided the AFP clearance dated 15 July 2015 to the Tribunal.

9. The Tribunal noted that there appeared no evidence on the Department’s file that the AFP clearance of 10 June 2014 had been uploaded or otherwise provided with the applicant’s subclass 485 visa application lodged on 9 May 2015.  The applicant and his agent stated that they believed it had been.  The Tribunal requested that they review their records and provide whatever proof they could of a copy of the AFP clearance dated 10 June 2014 was lodged with the subclass 485 visa application, as (in the Tribunal’s view), cl.485.213 required not just that the applicant had applied for an AFP clearance in the 12 months preceding 9 May 2015, but that evidence of his having done so accompanied his subclass 485 visa application.  The applicant’s agent indicated that he would review his records and provide further submissions to the Tribunal.  The Tribunal also indicated that it would request that the Department confirm (if possible) whether the 10 June 2014 AFP clearance was uploaded with the applicant’s subclass 485 visa application, but had been omitted from the Department file provided to the Tribunal.

10. On 5 September 2015, the applicant’s agent provided a written statement from the applicant, in which the applicant stated (in summary) that at the time of lodgment of his subclass 485 visa application, he had all the necessary documents to be eligible for the grant of the visa, and passed on these to his agent.  He stated that due to technical difficulties on the immigration website, however, the agent automatically ticked ‘no’ to the AFP clearance and English test requirement questions in the online application form, despite the fact that the applicant had both these documents.  The applicant stated that because his original AFP clearance dated 10 June 2014 was valid for 12 months only, by the time that he received a request from the Department to provide one, he assumed the Department meant that the applicant had to provide a new AFP clearance.  The applicant said that he took up this up with his agent after his subclass 485 visa application was rejected, and that his agent said that there was no way he would have ticked ‘no’ in those fields as they were mandatory requirements at the time of lodgment and he would not have been able to proceed with the online application.  The applicant stated that situation was beyond his and his agent’s control and he asked for leniency.  He attached copies of both AFP clearances and a copy of his online subclass 485 visa application.

11. In the meantime, the Tribunal sought clarification from the Department on 6 September 2016 as to whether a copy of an AFP clearance from June 2014 had been uploaded with the applicant’s online subclass 485 visa application made on 9 May 2015.  On 8 September 2016, the Tribunal received a response from the relevant program area of the Department advising that the Department did not receive an AFP clearance with the visa application.  The response indicates that the applicant’s ImmiAccount record was checked, which shows all documents uploaded by the applicant and/or his agent and the date on which they were uploaded. In addition, the Department also checked the electronic version of the applicant’s TRIM file and its electronic mailboxes.  The only AFP-related document that was provided/uploaded to the Department was the AFP receipt issued on 15 July 2016, recorded by the Department as having been received on 23 July 2016. 

12. The Tribunal sent a s.359A letter to the applicant via his agent on xx 2016.  It attached the information received from the Department on 8 September 2016 and advised that, as discussed at the hearing, the information provided by the Department indicated that neither the applicant nor his agent provided a copy of the AFP clearance of 10 June 2014 with the applicant’s online subclass 485 visa application lodged on 9 May 2015.  The Tribunal stated that this information was relevant because, if this was accepted by the Tribunal, then it would find at the time his visa application was made, it was not accompanied by evidence that the applicant had applied for an AFP clearance in the immediately preceding 12 months.  The Tribunal further advised that if it found this, then it would have to find that the applicant did not meet cl.485.213 and this would be a reason (or part of the reason) to affirm the decision under review.  The applicant was invited to respond and provide written comments on this information by 23 September 2016.

13. On 16 September 2016, the Tribunal received a submission from the applicant’s agent in which he asked the Tribunal to consider the case leniently as what had occurred was not the applicant’s fault.  He submitted that at the time that the visa application was made, the AFP check from June 2014 was in his possession, as the applicant had provided him with all the necessary documents to accompany the application and to meet the subclass 485 visa requirements. He further stated that on 19 June 2015, the Department requested that the applicant provide an AFP check and he (the agent) thought that the applicant needed to apply for a new one as the previous one had expired.  He stated that due to this, he uploaded the receipt relating to a new AFP check and must not have uploaded the expired one.  The agent further stated that he had checked his sent emails and believed that he had not forwarded the earlier AFP clearance to the Department as it had already expired.  The agent stated that for some unknown reason, the applicant had ticked ‘no’ to the questions in the online application about his English proficiency and whether he had done an AFP check.  The agent acknowledged that both these documents were required at the time of lodgment and he did have them in his possession.  He said that he understood that it was his mistake as he overlooked the documents required and did not forward the older AFP check in response to the request made by the Department on 19 June 2015.  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant meets cl.485.213.

    Evidence relating to police checks

16. 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.

17. The Tribunal has regard to the case of Panchal v Minister for Immigration [2012] FMCA 562, in which Scarlett FM considered the phrase ‘accompanied by evidence’ in relation to cl.485.216 (identically worded to cl.485.213), and concluded that the phrase ‘… clearly refers to something other than that which is contained in the online application form’ (at [84]).

18. It also has had regard to the case of Anand v Minister for Immigration and Citizenship [2013] FCA 1050, in which Katzmann J considered an identically worded clause (cl.487.216) and held that:

    It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria.  That is why relevant evidence is to accompany the application.  Consistent with that purpose the evidence should be submitted with or at the same time as the application.  Yet, it is not necessarily inconsistent with that purpose that the evidence is submitted after the visa application is lodged, although how long after is another question… For the above reasons, I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged.  Evidence supplied around the time of the application may be sufficient. I doubt, for example, if accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application. It might even extend beyond that.  Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within a week, and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged…

19. The Tribunal notes that Anand’s case dealt with an arguably more flexible formulation of the requirement, as the ‘time of application’ requirement in that case came under the cl.487.21 heading and was not contained in the cl.487.216 criterion itself.  While the heading informs the criterion, it is not determinative.  However, in the form of the criterion that applies to this case, the criterion itself specifies that ‘when the application was made’ it ‘was accompanied by’ the specified evidence’ and the expressions ‘had applied’ and ‘had made the arrangements’ (contrasted to ‘has applied’ or ‘has made the arrangements’) locate the substantive content clearly in the past.

20. Finally, the Tribunal has had regard to another more recent case, Nguyen v Minister for Immigration & Anor [2016] FCCA 1523, in which Burchardt J held that the words ‘accompanied by’ in the context of a subclass 485 visa application are ‘imperative’ and suggest that there must be ‘a very close temporal connection’ between the time that the application is lodged and when the evidence which must accompany that application must be provided. In that case, Burchardt J held that a 29 day gap was too great. The Tribunal further notes that in that case, Burchardt J was considering cl.485.223, not cl.485.213. However, cl.485.223 also provides that at the time the visa application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills from the relevant assessing authority, which is essentially the same wording as that used in cl.485.213.

21. Based on the evidence before it, the Tribunal finds that:

    ·the applicant made his subclass 485 visa application on 9 May 2015;

    ·it was not accompanied by evidence that the applicant had applied for an AFP check during the 12 months immediately before the application was made.

22. The Tribunal accepts that the applicant had in fact provided his agent with an AFP check issued to him on 10 June 2014 (within the 12 month period immediately before the visa application was made).  Unfortunately, this was not provided to the Department at any stage.  While the applicant has provided it to the Tribunal, the Tribunal finds that it did not accompany the visa application, even taking into account the case law in Anand and Nguyen discussed above, and thus the Tribunal must find that the applicant does not satisfy cl.485.213.  The Tribunal acknowledges that the applicant applied for a new AFP clearance which he received on 15 July 2015 and provided to the Department.  However, this was not obtained in the 12 months immediately before the application was made and thus cannot satisfy cl.485.213.

23. The Tribunal notes that it has no discretion to overlook or waive the requirements of cl.485.213, even where the failure to satisfy it was not caused by the applicant.

24. 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

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

    Alison Mercer
    Member