1606745 (Migration)

[2016] AATA 4595

1606745 (Migration) [2016] AATA 4595 (31 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jyotsna Pradhan

CASE NUMBER:  1606745

DIBP REFERENCE(S):  BCC2016/1251081

MEMBER:Hugh Sanderson

DATE:31 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 31 October 2016 at 11:48am

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 6 May 2016 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 16 March 2016. 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).

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations because the applicant had not applied for and Australian Federal Police (AFP) check during the 12 months immediately before the day the application was made.

   Background

4. The applicant applied for the subclass 485 visa on 3 March 2016. The application form contains in the instructions for applying for the visa the following warning:

   You must provide evidence of having applied for an Australian Federal Police (AFP) ‘National Police Check’ in the 12 months before you apply for the Temporary Graduate (subclass 485) visa. This also applies to all family members listed in your application who are aged 16 years or older…

5. In the form the following question is asked:

   Have you, and any other person included in this application who are 16 years of age or over, applied for an Australian Federal Police for a ‘National Police Check’?

6. In response to this question, the applicant answered “No”.

7. Next to the box where the applicant answered no the following was stated:

   Important – If you, and any other person included in this application who was aged 16 years or over, have not requested and Australian Federal Police ‘National Police Check’, you cannot meet the criteria for the grant of this visa.

8. The delegate who considered the application noted no information had been provided which would indicate the applicant had applied for an AFP check during the 12 months immediately before the day the application was made. Accordingly the delegate found that the applicant did not meet the criteria in cl.485.213 and refused the application.

   Information to the Tribunal

9. The Tribunal wrote to the applicant on 20 September 2016 inviting her to attend the hearing before the Tribunal on 14 October 2016. On Friday 7 October 2016 the applicant’s agent wrote to the Tribunal requesting a postponement of the hearing. The applicant’s agent said that his client was “currently overseas and waiting for a decision on her visitor visa application to enable her to attend the hearing”.

10. The Tribunal wrote to the applicant’s agent on 10 October 2016 declining the request for a postponement and advising the applicant she could attend by telephone. The applicant’s agent again requested a postponement on 12 October 2016 stating that his client had instructed him that she does not have a phone in India. The Tribunal wrote to the applicant’s agent on 13 October 2016 and advised the agent that he would be required to attend and did not accept that the applicant would not have access to a phone to attend the hearing.

11. The applicant’s agent attended the hearing on 14 October 2016. He stated that he had been communicating with the applicant by way of the Internet and she did not have access to a phone. The applicant’s agent argued that the applicant should be able to attend the hearing in person. The Tribunal noted the issue before the Tribunal was whether, when the application was made, it was accompanied by evidence that the applicant had applied for an AFP check during the 12 months immediately before the day the application was made. The Tribunal noted that no evidence had been provided which would allow the Tribunal to make that finding. The applicant’s agent indicated that he had not obtained instructions from the applicant about this issue. The Tribunal suggested that the agent obtain these instructions.

12. The application was adjourned for a further hearing on 28 October 2016.

13. The applicant’s agent wrote to the Tribunal on 27 October 2016 at 8:45pm requesting a postponement. It was claimed that the applicant “is in India and is not having any access to mobile phone” and it was not possible to go to a public phone and call the Tribunal. It was stated that the applicant was waiting for a decision on a visitor visa application to enable her to attend the hearing. The Tribunal wrote to the applicant on 28 October 2016 declining the application for a postponement of the hearing. It was noted that the applicant had still not provided any evidence that she met the criteria in cl.485.213 and the Tribunal did not accept that she would not have access to a telephone.

14. The applicant’s agent wrote to the Tribunal on 28 October 2016 at 12:31pm stating as follows:

    How can my client examine and submit and evidence, that may be sitting in the cupboard of her Australian residence? I believe you have already made up your mind and you are bent upon refusing the application.

    I again request you to be fair and grant extension to my client to enable her to submit her evidence in person.

15. The Tribunal advised the applicant’s agent that it was declining the request for a postponement. The applicant and the applicant’s agent failed to attend the hearing. The Tribunal has proceeded to a decision based on the information provided by the applicant.

16. The applicant was represented in relation to the review by her registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the current application is whether the applicant satisfies the criteria in cl.485.213.

19. The applicant, through her agent, has asked for a postponement of the hearing. The applicant is currently in India and is applying for a Visitor visa on the basis that she needs to attend the hearing in person. The Tribunal has advised the applicant, through her agent, that it would acceptable for the applicant to appear by telephone to give evidence and present arguments. The Tribunal does not accept the claim by the applicant that she does not have access to any telephone by which she could be contacted in India. The Tribunal does not accept that the applicant is required to be able to appear in person to meet the obligations to be able to present evidence of the hearing before the Tribunal or that she should be granted a Visitor visa to be able to attend the hearing. The Tribunal finds the requirement to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review has been met by inviting the applicant to appear before the Tribunal by telephone.

20. The applicant was invited to provide any further information to the Tribunal in support of her application. The only evidence that is needed to be provided is information to confirm when she has applied for a National Police Check. No further information has been provided.

    Evidence relating to police checks

21. 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.

22. There is no information before the Tribunal that when the application was made it was accompanied by evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made. In the application, the applicant ticked the box “No” in response to the question of whether she had applied for an Australian Federal Police “National Police Check”.

23. Despite having representation throughout the proceedings before the Tribunal, the applicant has not provided any information which would indicate that she has obtained a Police Check or, if she has, when she applied for it.

24. As the applicant has not provided any information to indicate she has applied for a Police Check and as in her application she states she had not applied for a Police Check at the time of the application, the Tribunal finds that the applicant has not, during the 12 months immediately before the day the application was made, applied for and Australian Federal Police check.

25. Therefore the applicant does not satisfy cl.485.213.

26. 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

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

    Hugh Sanderson
    Member