Chan (Migration)

[2020] AATA 4068

Chan (Migration) [2020] AATA 4068 (22 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chee Ho Chan

CASE NUMBER:  1905745

DIBP REFERENCE(S):  BCC2018/5873374

MEMBER:Susan Trotter

DATE AND TIME OF

ORAL DECISION AND REASONS:         22 September 2020 at 12:49 pm (QLD time)

DATE OF WRITTEN RECORD:                30 September 2020

PLACE OF DECISION:  Brisbane

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

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – no AFP check within 12 months before application made – applicant held Queensland Blue Card, which includes AFP check – told by department that this could potentially substitute – no power to waive requirement – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 485.213

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 February 2019 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).

2. At the hearing on 22 September 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 February 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under section 65 of the Act.

4. The applicant applied for the visa on 29 December 2018. Visa Class VC contains Subclass 485. 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 Migration Regulations).

5. 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 to satisfy only the secondary criteria. The delegate refused to grant the visa because the applicant did not satisfy cl 485.213 as the delegate was not satisfied on the evidence that it included evidence that supported that the applicant had, as required, applied for an Australian Federal Police check during the 12 months immediately before the day the visa application was made.

6. The applicant lodged an application with the Tribunal on 12 March 2019 and provided a copy of the delegate’s decision in relation to which he sought review.

7. The applicant appeared before the Tribunal on 22 September 2020 to give evidence and present arguments in relation to his application. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined that it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone, particularly in circumstances where there is already an inevitable delay in reviewing matters given the demand on the Tribunal’s resources because of the number of applications made. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. The issue in the present case is whether, when the visa 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 date the application was made.

9. Clause 485.213, as has already been noted, of Schedule 2 to the Migration Regulations, sets out this requirement and provides that:

   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.

10. The applicant lodged a number of documents with the Tribunal during the course of the application, including the following documents:

    (a)Firstly, the applicant lodged a letter with the Tribunal which was as follows. It is an undated letter addressed “To whom it may concern” as follows (unedited):

    I am writing this because of my visa refusal due to not applying for an Australian Federal Police Check. I have provided all other documentations needed for my visa application except for the Australian Federal Police Check, because I provided the documentation for a Blue Card application instead. I was under the impression that a Blue Card application includes an Australian Federal Police Check. I also went to the Brisbane Visa and Citizenship Office, Department of Home Affairs located on 299 Adelaide St, Brisbane City where they provided me with a number to call, and through that phone call, told me that a Blue Card application could potentially be a substitute for an Australian Federal Police Check.

    If that is not the case, then would it be possible for me to apply for an Australian Federal Police Check now to complete my visa application? I am currently in Australia, so it is possible for me to apply for one relatively quickly, and I would have done so if not for the misunderstanding. I have also lived in Australia for over 10 years, and I am 21 years old, so I have lived here for about half of my entire life, and I would love to continue to stay here as this place is basically my second home.

    (b)A copy of a letter from the Queensland Government Blue Card Services within the Department of Justice and Attorney-General dated 23 April 2018 which letter included that the applicant’s application for a Blue Card had been approved.

    (c)A copy of his Blue Card with an expiry date in April 2021.

    (d)A printout from a website on the Blue Card system including information such as the following: The blue card check is more than a police check. It lists a number of other matters but notably, as discussed with the applicant at hearing, it does also refer to the Blue Card check being more than a police check.

11. Initially the Tribunal notes that in the letter to the Tribunal, the applicant asked for advice as to whether he should now obtain an Australian Federal Police check given that he was in Australia and it would be relatively easy to obtain. As discussed with the applicant at hearing, it is not the role of the Tribunal to provide advice in relation to migration matters. Additionally, the Tribunal notes, as will become clear from the further reasons and as has already been noted, that the requirement to apply for an Australian Federal Police check is linked in time to the 12 months prior to the date of the visa application, such that an application made after the date of the visa application would not in any event meet the requirement in question.

12. The Tribunal also spoke in detail with the applicant about his evidence that he could have applied for an Australian Federal Police check at any time and his statement that he was under the impression that the Blue Card sufficed instead of the Australian Federal Police check. The Tribunal also noted that the applicant told it that he had completed middle school and high school in Australia and had obtained a Bachelor of IT in Australia, that he is currently working full time with an IT consultancy company and has a permanent full-time position with the company. The Tribunal acknowledges all of these matters and understands the importance of the visa to the applicant.

13. However, the Tribunal also discussed with the applicant at hearing its concern, as was also canvassed in the delegate’s decision provided by the applicant to the Tribunal, that the applicant’s visa application was not accompanied by evidence that the applicant applied for an Australian Federal Police check during the 12 months immediately before the date the visa application was made on 29 December 2018.

14. Having taken into account all of the available evidence, including the documentation on the Department’s file, the documentation provided by the applicant to the Tribunal and the applicant’s evidence to the Tribunal, the Tribunal makes the following findings:

    (a)The applicant lodged a Subclass 485 visa application on 29 December 2018. On the same date the Department wrote to the applicant confirming receipt of the visa application.

    (b)Amongst other things the Department’s letter to the applicant said as follows:

    We received your Temporary (Graduate Work) (subclass 485) visa application on 29 December 2018.

    …

    We may make a decision on your application without requesting additional information. You should provide us with all the information you feel is relevant.

    As you lodged your application online, you should log in to your ImmiAccount to see the documents required for your application.

15. The Tribunal notes that further on the Department’s file which was before the Tribunal, there is a Written Record of the Responses that the applicant gave in his visa application. As discussed with the applicant at hearing, the Written Record of Responses and the information in relation to his visa application included as follows:

    To be eligible to be granted a subclass 485 visa through the Graduate work stream, you must have already taken steps to meet certain requirements and obtain documentation before you lodge your application. If you do not meet the requirements below, you may not be able to lodge or to be granted a visa.

16. The Written Record of Responses and the online application then goes on to ask a number of questions including in relation to age, skills assessment, study, language requirements etc. It also requires that a question be answered in relation to the Australian Federal Police check under the subheading, “Australian Federal Police” which states: ‘Have you and all persons included in the 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. The applicant responded ‘No’. The Tribunal notes that this is consistent with the applicant’s evidence to the Tribunal at hearing that he responded ‘No’ on the basis that he understood that the Blue Card would suffice.

18. Therefore, the applicant has acknowledged that he did not apply for an Australian Federal Police check during the 12 months immediately before he made the visa application. The Tribunal understands and acknowledges the reasons why from the applicant’s point of view he did not do so. However, as discussed with the applicant at hearing, the Tribunal cannot change the law. The plain wording of cl 485.213 specifies that the applicant’s visa application must, when it was made, have been accompanied by evidence that he had applied for an Australian Federal Police check during the 12 months immediately before the date on which the visa application was made.

19. The Tribunal is required to be satisfied that cl 485.213 is met and that it is met in the way set out in its clear wording, regardless of the reasons the applicant may have had for not applying for an Australian Federal Police check and obtaining it within the specified period. The Tribunal is bound to apply the law as it is written. The applicable law does not give the Tribunal any power to waive or overlook the need to meet cl 485.213.

20. Based on the evidence, the Tribunal must find that the applicant did not apply for an Australian Federal Police check during the 12 months immediately before the day on which his visa application was made.

21. The Tribunal finds therefore that 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 must be affirmed.

    DECISION

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

    Susan Trotter
    Member