Cheng (Migration)

[2019] AATA 6044

Cheng (Migration) [2019] AATA 6044 (27 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kwan Chung Cheng

CASE NUMBER:  1915140

DIBP REFERENCE(S):  BCC2019/1205298

MEMBER:Jennifer Cripps Watts

DATE:27 November 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 27 November 2019 at 5:44pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – AFP check not provided – provided National Police certificate – Ministerial intervention requested – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 485.213, 485.216, Public Interest Criterion (PIC) 4001, r 2.03AA

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 10 March 2019. 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. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: r.2.03AA(1). In this case, cl.485.216 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in r.2.03AA(2).

4. Regulation 2.03AA(2)(a) requires that, if requested, the applicant has provided a statement from a relevant authority in a country where the person resides or has resided that provides evidence about whether or not the person has a criminal history. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal may waive the requirement in r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

5. The delegate refused to grant the visa on 6 June 2019 on the basis that the applicant did not meet r.2.03AA because when the delegate requested that the applicant provide an Australian Federal Police Check (AFP Check), the applicant provided a NSW Police Force National Police Certificate which was not the appropriate statement, as described and requested.

6. Another issue arises on the review and that is whether the applicant meets cl.485.213 which requires, essentially, that the applicant has applied for an AFP check of criminal records during the 12 months immediately before the day the visa application is made.

7. On 12 June 2019 the applicant applied for review of the decision and provided the Tribunal with a copy of the delegate’s decision to refuse the visa. On 21 October 2019, the Tribunal sent the applicant to a hearing scheduled on 26 November 2019, including a request that the applicant provide the Tribunal with evidence of having applied for an AFP Check within the 12 month period before the visa application.

8. The applicant appeared before the Tribunal on 26 November 2019 to give evidence and present arguments.

9. The applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The applicant applied for a Subclass 485 visa in the Post Study Work stream – the primary criteria that must be met are cl.485.21 and 485.23.  The meet primary criterion, cl.485.216, the applicant is required to satisfy PIC 4001 for the grant of the visa; r.2.03AA applies.  Essentially, that if the Minister requires it, to satisfy PIC 4001 the applicant must provide ‘a statement (however described) from an appropriate authority’:  r.2.033AA(2)(a).  Relevant to this case, an AFP Check.  Even if they provide the correct AFP Check, if the applicant did not apply for it in the 12 months immediately before the day the visa application was made, it will not be sufficient to meet cl.485.213. 

12. The Tribunal has carefully considered all relevant information provided by the applicant going to the issue on the review, including oral and documentary evidence.

13. The applicant applied for the visa on 10 March 2019. In the online application form, the applicant answered ‘Yes’ in response 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?’ and provided the reference number NCHRC-2018-77370 in his online application as evidence of having applied for the police check.

14. The visa was refused by the delegate because the applicant did not satisfy r.2.03AA.  When the visa application was being assessed, the delegate requested a police check, described as an AFP Check, be provided.  The applicant did not provide the statement requested, but provided a New South Wales Police Name Check Certificate, with the same reference number that was given in the online application.

15. To satisfy r.2.03AA(2)(a), the applicant must provide a statement (however described) by an appropriate authority relating to their criminal history.  The statement was described as an AFP Check.  It is also a requirement that evidence must accompany the application that shows the applicant had applied to the AFP for a check of criminal records in the 12 months immediately before the day the application was made:  cl.485.213.  This issue was raised with the applicant, both in the written hearing invitation and at the Tribunal hearing, and it was explained to him that even though he had now provided the Tribunal with an AFP Check, unless there was evidence he had applied for it in the 12 months immediately before the visa application, he would not be able to meet the criteria.

16. The delegate considered the evidence and whether it was not reasonable for the applicant to provide the AFP Check.  The delegate decided that the wrong police check had been provided, it was not reasonable for the applicant not to provide a police check, and that the applicant did not therefore satisfy r.2.03AA(2)(a) and that r.2.03AA(3) did not apply.

17. On 12 June 2019 the applicant applied for review of the decision and provided the Tribunal with a copy of the delegate’s decision to refuse the visa. On 26 October 2019, the applicant provided the Tribunal with an AFP Check issued on 1 July 2019 with reference number 5573718PC.

18. The Tribunal has considered all relevant oral and documentary evidence in making a decision.  On the evidence, there is no information before the Tribunal that when the applicant applied for the visa, on 10 March 2019, that it was accompanied by evidence that he had applied for an AFP Check in the 12 months immediately before the day the application is made.  The applicant, in his written and oral evidence, does not dispute that he provided the wrong police check, but says it was a genuine mistake.

19. With the online application, the applicant provided a receipt number for a NSW Police Force National Police Certificate.  The applicant has provided an AFP Check dated 1 July 2019 that he acknowledges he had not applied for in the 12 months immediately before the day the visa application was made.

    Conclusion

20. On the above findings, the applicant does not meet the requirements of cl.485.213.

    Request for referral to the Minister for Intervention

21. The Tribunal acknowledges that a request was made by the applicant to refer their matter to the Minister in the event of an unfavourable decision on the review of the decision to refuse his Subclass 485 temporary visa. 

22. 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 has carefully considered the submissions by the applicant’s migration agent, and the applicant’s written and oral evidence, but has decided not to make a specific recommendation of referral.  As there will be an appropriate existing decision in the applicant’s case from the Administrative Appeals Tribunal (Migration and Refugee Division), the applicant will be able to make a direct request to the Department for Ministerial intervention to have the request assessed against the Ministerial guidelines if he chooses to.

    DECISION

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

    Jennifer Cripps Watts
    Member