Basnet (Migration)

[2019] AATA 729

Basnet (Migration) [2019] AATA 729 (8 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Priya Basnet

CASE NUMBER:  1902459

DIBP REFERENCE(S):  BCC2018/5370290

MEMBER:Jennifer Cripps Watts

DATE:8 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 08 April 2019 at 3:12pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – visa application not accompanied by evidence that applicant applied for Australian Federal Police check in the 12 months before making application – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 485.213

CASES
Boddu v Minister for Immigration & Anor [2019] FCCA 879

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 (the delegate) 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 30 November 2018. The criteria for a Skilled (Provisional) (Class VC) visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. The delegate refused to grant the visa on 17 January 2019 because the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations because the visa application 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 (AFP) Check during the 12 months immediately before the day the visa application was made. The applicant applied for review on 4 February 2019, within time, and provided the Tribunal with a copy of the delegate’s decision.

4. The applicant was represented in relation to the review by her migration agent, Mr Hem Raj Bhatta, Migration Agent Registration Number 1466471.

5. On 25 March 2019, Mr Bhatta wrote to the Tribunal requesting that the hearing be postponed until ‘at least May’ due to a holiday he had planned.  He attached an itinerary which indicated that he was departing on 10 April 2019, two days after the scheduled hearing, on 8 April 2019.  He said that he needed more time to prepare for the hearing.     

6. In the postponement request, Mr Bhatta says that he had explained the law to the applicant and told her that, in her case, ‘the law strictly applied will have less or no chance of successes.’  He said he believed she understands the position.  Given that Mr Bhatta says that he had advised the applicant, no later than 25 March 2019, as to her prospects of success on review, it is reasonable for the Tribunal to think that he has reviewed her file.  The invitation to the hearing was sent to the applicant on 12 March 2019 informing the applicant that her hearing was scheduled on 8 April 2019, giving the applicant and her migration agent nearly four weeks to prepare for the hearing which the Tribunal considers to be a reasonable amount of time to prepare and provide additional documents or information.  The Tribunal carefully considered the postponement request and, on 26 March 2019, Mr Bhatta was informed that the request for postponement was not granted and that the hearing would go ahead as scheduled on 8 April 2019.  Mr Bhatta was advised that if he could not attend the hearing with his client in person as he indicated he wished to do, he was welcome to attend by phone. 

7. The applicant appeared before the Tribunal on 8 April 2019 to give evidence and present arguments with her brother-in-law, Shamhu Bhandari, who also gave evidence.

8. Mr Bhatta provided written submissions, dated 5 April 2019 and received by the Tribunal on the morning of Monday 8 April 2019.  He indicated that he would have preferred to present oral submissions but could not due to a prior commitment.  As noted above, the Tribunal did not accept that he had a prior commitment on 8 April 2019, as the itinerary he provided for his holiday showed that he was departing Australian on 10 April.  He was invited to attend the hearing in person or by phone, but chose not to attend in person or by phone and was not denied an opportunity to give oral submissions.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 (AFP) Check during the 12 months immediately before the day the visa application was made.  The Subclass 485 visa application that is the subject of this review was made on 30 November 2018.

11. In this case, the applicant must meet cl.485.213 which states clearly that she had to apply for the AFP Check before she lodged her visa application:

    485.213

    When the application was made, it was accompanied by evidence that:

    (a)   the applicant; and

    (b)   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.

12. The Tribunal wrote to the applicant on 15 March 2019 informing her that if she applied for an AFP Check after making the visa application she will not be able to meet the criteria for the grant of the visa.  The Tribunal also informed the applicant that it appeared, on the information she provided, that she completed her course of study on 1 November 2018 and that this may mean she could still make another application relying on that qualification, if she is of the view that the qualification is one awarded by an education institution of a kind specified by the Minister in an instrument in writing that was completed in the period of 6 months ending immediately before the visa application.  In the letter, the applicant was encouraged to obtain migration advice about this.

13. This letter was followed about a week later by the postponement request from Mr Bhatta, detailed above, received on 25 March 2019.

14. In addition to the letter sent to the applicant on 15 March 2019, the Tribunal explained the requirements of cl.485.213 to the applicant at the hearing.  Specifically, that she needed to have applied for the AFP Check in the 12 months immediately before she lodged the visa application.

15. At the beginning of the hearing, the applicant was asked if she had applied for an AFP Check before lodging her Subclass 485 visa application that is the subject of this review.  She said ‘no’ and said this was because she was not aware that she had to.  The visa was refused and the applicant notified on 17 January 2019.  The applicant has now provided an AFP Check dated 21 January 2019, which she says she applied for after the visa was refused.  The applicant and witness gave largely consistent evidence about the problems they perceive the online application form to have that they say caused the applicant to misunderstand that an application for an AFP Check at the time of application was a mandatory requirement.

16. In the online 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?’

17. In the delegate’s decision it is recorded that the application was assessed on 17 January 2019.  It would seem reasonable to the Tribunal that as the applicant had answered ‘no’ to the question about whether she had applied for an AFP Check, the delegate did not ask her to provide one when assessing the application.  The visa was refused because the applicant did not satisfy cl.485.213.

18. The Tribunal received lengthy submissions from the applicant’s migration agent on the morning of the hearing.  They have been considered with a focus on what is relevant in them.  The submission is made that because there is no message in the online form under the question about the AFP Check application (above) that indicates that the applicant will not be able to meet the requirements for the visa (as there are in other parts of the application), if they answer ‘no’ it cannot be said to be a compulsory or mandatory requirement.  It is also submitted that in the application form it says that the Department ‘may ask’ the applicant to provide a police certificate, when in other parts of the application it is clear that certain information is essential where yes/no answers are required.  It is also submitted that the Department’s website provides misleading or confusing information about the AFP Check requirement.  It is suggested that the Tribunal may accept the AFP Check dated 21 January 2019 as ‘accompanying’ the application.  The issue arising from these matters is, in the Tribunal’s view, essentially a claim that the online visa application is confusing and that the ‘Department failed her’ and that the applicant should ‘not be punished for not knowing the rules (or) not using a migration agent’.  The applicant did not have a migration agent at the time of the visa application.

19. The Tribunal has considered the submissions and evidence.  It is the Tribunal’s view that it is for an applicant to be aware of the requirements for the grant of a visa, including how to submit their visa application in terms of the answers they provide in it and any supporting documentation.  It is a matter of choice for an applicant if they get migration advice before lodging a visa application.  The applicant and her brother-in-law gave essentially the same evidence about what they say is the confusing nature of the application form and misleading information provided on the Department website.  They say it is not clear that an AFP Check must be applied for before making the visa application and that if ‘no’ is answered to the question about the AFP Check, the form should not let an applicant proceed further.  These things were discussed with the applicant and her brother-in-law at the hearing their evidence about them has been considered.  The Tribunal accepts that the online application allows an applicant who answers ‘no’ to the question about the AFP Check to proceed to complete the online application. 

20. Clause 485.213 requires an applicant to have made application for an AFP Check in the 12 months prior to making the visa application.  It is a mandatory requirement at the time of application.  The Tribunal has no discretion to waive the requirement.  On the evidence, the applicant indicated in the online application form that she had not applied for the AFP Check at the time of application and said at the hearing that she did not apply for one until after she lodged her visa application and, although not material, after the visa was refused. 

21. Mr Bhatta makes apologies in the 6-page written submissions for the lateness of them and any errors that might be contained in the submissions because they were ‘hastily prepared’.  The Tribunal’s view is that Mr Bhatta has had more than ample time to prepare the submissions and any errors, if there are any, would not be accepted as being as the result of his not being able to prepare the submissions until Friday night before a Monday morning hearing.  He has been the agent of record since the Tribunal application was made on 4 February 2019.  It is also noted that Mr Bhatta informed the Tribunal, in an email dated 25 March 2019, that the applicant (on the law strictly applied) has ‘less or no chance’ of success, indicating that he had turned his mind to the circumstances of her visa refusal at least two weeks ago. 

22. In a recent Federal Circuit Court decision, Boddu v Minister for Immigration & Anor [2019] FCCA 879 (5 April 2019), in circumstances where an applicant for a Subclass 485 visa had not applied for an AFP Check before the visa application and had subsequently provided one that they applied for after the visa application, the Court found in favour of the Minister.  Essentially the position was held to be that if the applicant did not apply for an AFP Check before lodging the visa application, the Tribunal need not consider whether any subsequent police check ‘accompanied’ the visa application because they did not satisfy cl.485.213,  which is mandatory. 

23. Having considered all relevant facts and matters, the Tribunal finds that when the visa application was made it was not accompanied by evidence that the applicant had applied for an AFP check during the 12 months immediately before the day the application was made.

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

    Ministerial Intervention

25. The written submissions dated 5 April 2019 are concluded by Mr Bhatta with a request that if a positive decision is not made that the Tribunal refer the matter to the Minister.  The Tribunal confirmed with the applicant towards the end of the hearing that it was her wish that the Tribunal consider referring her matter to the Minister under Ministerial guidelines.

26. Under the Ministerial guidelines, the Tribunal may refer a case to the Department if the Tribunal member believes there are issues involved that fall within the unique or exceptional circumstances described in section 4 of the guidelines. The Tribunal acknowledges the request.  The Tribunal has decided not to make a specific recommendation of referral.  As there will be an appropriate existing decision in the applicants' case from the Administration Appeals Tribunal (Migration and Refugee Division), the applicant will be able to make a direct first request to the Department for Ministerial intervention to have the request assessed against the Ministerial guidelines if she chooses to.

    DECISION

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

    Jennifer Cripps Watts
    Member