Chawala (Migration)

[2018] AATA 2432

Chawala (Migration) [2018] AATA 2432 (6 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shubham Chawala

CASE NUMBER:  1717263

DIBP REFERENCE(S):  BCC2017/2315870

MEMBER:Mary Sheargold

DATE:6 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 06 June 2018 at 3:32pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Australian Federal Police check – Applicant didn’t apply for an AFP check during12 months immediately before the day he lodged his visa application– Request for referring the case for Ministerial intervention refused by the Tribunal – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.213

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 20 July 2017 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 29 June 2017. 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.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations because he had not applied for an Australian Federal Police check during the 12 months immediately before the day he lodged his visa application.

4. The Tribunal received a review application from the applicant on 8 August 2017.  The review application was accompanied by a copy of the decision record from the Department, as well as a National Police Certificate dated 28 July 2017.

5. The applicant appeared before the Tribunal on 24 May 2018 to give evidence and present arguments.  The applicant was represented in relation to the review by his registered migration agent.  The applicant’s representative made written submissions to the Tribunal dated 21 May 2018, and these were elaborated upon during the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant applied for an Australian Federal Police check during the 12 months immediately before the day he lodged his Subclass 485 visa application.

   Evidence relating to police checks

8. 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.

9. During the hearing, the applicant gave oral evidence that he applied for his visa by himself, and noted that the question regarding police checks was not a mandatory field.  He stated that he submitted most of the required documents with his application, and that he was waiting for a call from the Department in relation to any outstanding documents.  The applicant told the Tribunal that he had no time when making his application, and thought he would apply for the AFP check at a later date because the question on the application form did not make clear that it was a mandatory requirement; rather, it just asked the applicant to answer ‘yes’ or ‘not’ to the question of whether he had applied for an AFP check in the 12 months prior to lodging his visa application.  The applicant told the Tribunal that his application was rejected straight away.

10. The applicant’s representative provided written submissions to the Tribunal on 21 May 2018.  In summary, the submissions stated that:

    ·the refusal of a visa may have a serious and prolonged effect on the well-being of his client, whom the representative describes as a young boy with a bright future ahead;

    ·if the visa refusal is not set aside, the applicant will be unable to gain post-study work experience before returning to India, and that returning to India without skills will be against his well-being and will affect him and his family for a long time;

    ·the applicant always remained a regular, full time, genuine student who worked hard on his studies, and who decided to utilise his skills for a better future on his return to India; and

    ·it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information, and that the refusal order was not made per the applicable requirements of procedural fairness, and therefore was invalid.

11. At the hearing, the representative further submitted that there is a misconception amongst the international student community that they can submit documents within 28 days of lodging a Subclass 485 visa application.  He stated that international students spend a lot of time and money on their education in Australia, and that if they go home without work experience, all the skills gained during their studies will be “zero”.  He submitted that the applicant was in a desperate situation, that he is young, and that he will suffer in the future if he is not allowed to stay.

12. Based on the evidence presented to it, the Tribunal makes the following findings:

    ·the applicant lodged a Subclass 485 visa application online on 29 June 2017;

    ·in this application, he answered ‘no’ to the question of whether he had applied for an AFP check in the preceding 12 months and he did not provide any documentary evidence that he had done so; and

    ·the applicant obtained an AFP check dated 28 July 2017, 8 days after his visa application was refused by the Department.

13. 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 AFP check during the 12 months immediately before the date on which the visa application was made.

14. The applicant has acknowledged that he did not apply for an AFP check during the 12 months immediately before he made his visa application on 29 June 2017, and has indicated to the Tribunal that it was unclear to him from completing the online visa application that applying for an AFP check prior to submitting his visa application was a mandatory requirement for the grant of a subclass 485 visa.  The there is no evidence before the Tribunal that the applicant had applied for an AFP check during the 12 months immediately before the day on which he made his visa application.

15. Based on the agreed facts, the Tribunal must find that the applicant did not apply for an AFP check during the 12 months immediately before the day on which his visa application was made. The applicable law does not give the Tribunal any power to waive or overlook the need to meet cl.485.213.

16. The Tribunal finds that to be successful, the applicant must meet cl.485.213 in the way that the provision sets out, and it further finds that he did not do so.

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

18. 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.

19. Finally, in both his written submissions dated 21 May 2018 and in oral submissions made at the hearing, the applicant’s representative stated that the applicant should be entitled to Ministerial intervention in the event that the Tribunal cannot find in his favour.  In summary, the submissions were that:

    ·the visa processing and merits review system lacks any discretion to overcome a minor technical defect, leading to harsh consequences for a genuine visa applicant acting in good faith; and

    ·the applicant is in a desperate situation and will face future suffering if he returns to India without work experience.

20. The applicant reiterated these points by stating to the Tribunal that if he goes back to India without work experience, his parents will not accept him.  The Tribunal invited the applicant to elaborate on what he meant by this, and queried whether the applicant believed he was at risk of harm if he had to return to India without his Subclass 485 visa.  The applicant told the Tribunal that he will face a lot of questions and problems from his family, and while he does not believe he will suffer physical abuse, he does believe he will suffer a lot of mental abuse from his parents.

21. The Tribunal has carefully considered the request for the Tribunal to recommend the matter to the Minister for intervention on the basis of the submissions above and the Minister’s guidelines regarding the unique and exceptional circumstances under which a matter may be recommended to the Minister for intervention.  Having considered all of the information available to it, the Tribunal declines the applicant’s request to recommend the matter to the Minister for intervention. However, it remains open to the applicant to make such a request if he believes that he has sufficient grounds to warrant Ministerial intervention.

    DECISION

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

    Mary Sheargold
    Member