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

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

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.

Keep reading for free

Create a free CaseChat account to read Basnet (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] AATA 729
Decision Date: 8 April 2019

CaseChat Overview and Summary

This matter concerned an appeal before the Administrative Appeals Tribunal (Migration and Refugee Division) regarding a Skilled (Provisional) (Class VC) visa, Subclass 485. The applicant sought review of a decision not to grant her the visa.

The primary legal issue before the Tribunal was whether the applicant had complied with Clause 485.213 of the Migration Regulations 1994. This clause mandates that a visa application must be accompanied by evidence that the applicant, and any other person included in the application aged 16 or over, had applied for an Australian Federal Police (AFP) check within the 12 months immediately preceding the date of the visa application.

The Tribunal found that the applicant had failed to meet this requirement. The visa application was lodged on 30 November 2018, but the applicant admitted at the hearing that she had not applied for an AFP check prior to lodging her application, stating she was unaware it was a mandatory requirement. The applicant subsequently obtained an AFP check dated 21 January 2019, which was after the visa had been refused. Despite the applicant's assertions regarding perceived difficulties with the online application form, the Tribunal concluded that the plain wording of Clause 485.213 required the application for the AFP check to precede the visa application.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa. The Tribunal also noted that the applicant could pursue a direct request to the Department for Ministerial intervention if she wished.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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:485.213When 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. 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. This letter was followed about a week later by the postponement request from Mr Bhatta, detailed above, received on 25 March 2019. 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. 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. 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?’

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.