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

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).
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.
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.
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.
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.
On 17 July 2016, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing on 2 September 2016.
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.
The applicant stated that he had obtained an AFP clearance prior…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 4444
Decision Date: 27 September 2016

CaseChat Overview and Summary

The applicant sought review of a decision to refuse a Skilled (Provisional) (Class VC) visa. The central dispute concerned whether the applicant had satisfied the requirements of clause 485.213 of the Migration Regulations 1994, which mandates that a visa application must be accompanied by evidence that the applicant, and any accompanying person aged 16 or over, had applied for an Australian Federal Police check within the 12 months preceding the application date.

The court was required to determine the meaning of the phrase "accompanied by evidence" within the context of clause 485.213. Specifically, the court had to consider whether evidence of an Australian Federal Police check, if submitted after the visa application was lodged, could still be considered as having "accompanied" the application for the purposes of satisfying the criterion.

The court had regard to previous decisions, including *Panchal v Minister for Immigration* [2012] FMCA 562, which suggested that "accompanied by evidence" refers to something beyond the online application form itself. The court also considered *Anand v Minister for Immigration and Citizenship* [2013] FCA 1050, where it was held that while evidence could potentially be supplied after lodgement, the phrase "accompanied by" was not so elastic as to encompass evidence submitted significantly later than the application. The court noted that the wording of clause 485.213, requiring that the application "was accompanied by" evidence and that the applicant "had applied," clearly located the substantive requirement in the past at the time of application.

Consequently, the court found that the applicant had not satisfied the criteria for the grant of a subclass 485 visa. The decision under review was affirmed, meaning the applicant was not granted the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue in the present case is whether the applicant meets cl.485.213.Evidence relating to police checks 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. 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]). 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… 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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