Chen (Migration)

[2017] AATA 1864

Chen (Migration) [2017] AATA 1864 (4 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chen Chen

CASE NUMBER:  1704635

DIBP REFERENCE(S):  BCC2017/48845

MEMBER:Alison Mercer

DATE:4 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 04 October 2017 at 4:56pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Australian Federal Police clearance requirement not met – Applicant didn’t attend the hearing

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 8 March 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 5 January 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, which required that, when the visa application was made, it was accompanied by evidence that the applicant had applied for an Australian Federal Police (AFP) check during the 12 months immediately before the day on which the visa application was made. The delegate noted that the applicant answered ‘no’ to the question in his online application form of whether he had applied for an AFP check in the last 12 months, and had not provided any evidence that he had done so.

4. The Tribunal received a review application from the applicant on 13 March 2017.  It was accompanied by a copy of the Tribunal’s decision.  Subsequently, the applicant provided to the Tribunal a copy of an AFP check issued to him on 17 March 2017 indicating that there were no disclosable court outcomes recorded against his name.  He also provided a Chinese police clearance (with notarised English translation) issued to him on 8 March 2017, which indicates that he has no criminal record in China.

5. On 2 and 5 May 2017, he provided a duplicate copy of the AFP clearance issued on 17 March 2017 and evidence of his ongoing health insurance cover.

6. On 28 July 2017, the Tribunal wrote to the applicant (via email) to invite him to a hearing on 17 August 2017 to be conducted by telephone on his nominated telephone number.  He was asked to confirm within 7 days whether he would attend the hearing. He was also advised that if he failed to attend the hearing, the Tribunal might dismiss his application for review, or alternatively, it might proceed to make a decision on the basis of the evidence before it without scheduling another hearing.  An SMS message reminding the applicant of the hearing date and time was sent to his nominated mobile phone number on 10 August 2017 and 16 August 2017.

7. The applicant did not attend the hearing on 17 August 2017.  He was unable to be contacted on the most recent mobile number he provided to the Tribunal on 21 May 2017.  The Tribunal received a message that it had been disconnected.

8. Under these circumstances – where the criterion in dispute is legally confined, and the applicant was notified of the hearing on several occasions using the mobile phone number he most recently provided to the Tribunal but did not respond to the Tribunal calling him for his telephone hearing on 17 August 2017 – the Tribunal has elected to proceed to a decision without taking further steps to offer another hearing to the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence relating to police checks

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 check during the 12 months immediately before the day the application is made.

11. Based on the available evidence, the Tribunal makes the following findings:

    ·the applicant lodged a  subclass 485 visa application online on 5 January 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;

    ·the applicant did not apply for an AFP check in the 12 months immediately before the day on which he made his application; and

    ·on 27 March 2017, the applicant provided to the Tribunal a copy of an AFP check issued to him on 17 March 2017.

12. The Tribunal therefore finds 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.  Although he subsequently provided an AFP clearance issued to him on 17 March 2017, there is no evidence that he applied for this before 5 January 2017, as required by cl.485.213.  As such, it does not satisfy cl.485.213 as his application was not accompanied by evidence that he had applied for this (or any other) AFP check during the 12 months immediately before the day the application is made.

13. 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

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

    Alison Mercer
    Member