Chittampally (Migration) - [2018] AATA 2178

Chittampally (Migration) [2018] AATA 2178 (24 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harish Chittampally
CASE NUMBER:  1619077
DIBP REFERENCE(S):  BCC2016/2873478
MEMBER:Bridget Cullen
DATE:24 April 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 24 April 2018 at 11:22am
CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – subclass 485 – Australian Federal Police clearance – Applicant did not meet the “time of application” criteria – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 51A, 65
Migration Regulations 1994, Schedule 2, cl 485.213
CASES
Argente v Minister for Immigration [2004] FMCA 252
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 October 2016 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 August 2016. 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.
The delegate refused to grant the visa because the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations as the delegate considered the applicant did not apply for the required Australian Federal Police clearance check during the 12 months immediately before the day he lodged the visa application.
The applicant appeared before the Tribunal on 11 April 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent (also a solicitor), who attended the hearing and made submissions. The Tribunal afforded the applicant the opportunity to provide post-hearing submissions, which were received by the Tribunal on 12 April 2018.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets cl.485.213.
Evidence relating to police checks
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.
The applicant told the Tribunal that he applied for an Australian Federal Police Check on 6 October 2016, which he concedes is after the time he applied for the visa. He received the Australian Federal Police Check the following day, on 7 October 2016. The Applicant has provided the Tribunal with a copy of this Police Check, which indicates that there are no disclosable court outcomes listed against him. The applicant has also applied for a second Australian Federal Police Check certificate, and provided the Tribunal with a copy of the receipt for application, which is dated 26 March 2018.
The applicant concedes that his applying for the police check on 6 October 2016 is not within the requisite 12 month period immediately before the visa application was lodged on 30 August 2016 (being the period 30 August 2015 to 30 August 2016).
The applicant submits that the Tribunal should take a flexible approach to the interpretation of cl.485.213, or in the alternative, refer the matter to the Minister to intervene, in light of the following circumstances:
·     The applicant has met the character requirements, as demonstrated by the lack of disclosable court outcomes in the police check clearance certificate;
·     His selecting “no” to the online application question, “Have you and all persons included in this application who are 16 years of age or older, applied in the last 12 months to the Australian Federal Police for a check of criminal records,” is a mere technical oversight;
·     There is a discrepancy between the strict wording of the regulation and the ambiguity of the general information in the online application and what was formerly provided on the Department’s website regarding the AFP requirement; and
·     The application of the relevant regulation in these circumstances has led to an unfair and unreasonable result.
The applicant’s argument in relation to ticking “no” on the form is essentially that after ticking no, the form allows one to proceed to complete the remaining sections of the form, and then continue to make payment for the application. The applicant says that this process misled him to believe that he could apply for, and subsequently provide, the AFP police clearance after the application was submitted.
The applicant says that, at the time he “checked the requirements on the Department’s website, [but] the material that he viewed did not clarify when the AFP should be applied for”. The applicant says that the Department has now modified the website to remove the previous ambiguity, such that it now reads, “provide evidence of having applied for an Australian Federal Police check in the 12 months before you apply.”
The applicant submits that, “there is a discrepancy between the very strict wording of cl. 485.213 and the ambiguity of the general information in the online application form and that which was formerly provided on the Department’s website relating to the requirement of the AFP”. He says that on the basis of the materials reasonably available to him, he could not have been made aware of the strict requirement of the relevant regulation. The applicant was without the assistance of a migration agent or solicitor at the time he lodged the visa application.
Whilst the Tribunal understands that applicants acting without a representative may struggle to understand the requirements contained in the Migration Act and Regulations, the Tribunal does not have any discretion to change the timeframe contained in Cl.485.213. As the criterion itself specifies that ‘when the application was made’ it ‘was accompanied by’ the specified evidence (the AFP police clearance), there is no latitude as to the relevant time.
Defect in the online application process
The applicant says that the online application should not have allowed him to continue to progress, and that the strict requirement of the regulation was not adequately reflected in the online visa application form. If it was, he says that he would not have applied for the visa before applying for the Australian Federal Police clearance certificate, and that his visa would not have subsequently been refused.
Section 51A of the Act essentially provides that the Department’s natural justice requirements are exhaustively contained in Subdivision AB, Division 3 of Part 2 (Code of procedure for dealing fairly, efficiently and quickly with visa applications).
In Argente v Minister for Immigration [2004] FMCA 252, Phipps, FM, considered whether the Departmental delegate had correctly determined that the applicant’s visa application was invalid. The applicant contended that the decision the application was invalid was unreasonable, did not accord him natural justice, and thus constituted jurisdictional error. The applicant applied for a Class DE Skilled Australian-Sponsored Overseas Student (Resident) Subclass 881 visa, sponsored by his Australian citizen aunt. The Schedule 1 criteria for the visa category prescribed a number of requirements which must be met at the time of application in order for the visa application to be valid.
A month after lodgement, the Departmental delegate informed the applicant that his application was invalid because: (a) it was not accompanied by evidence that during the 12 months immediately before it was made, the Australian Federal Police had completed a criminal records check of the applicant; and (b) it was not accompanied by adequate evidence of the family relationship between the applicant and his sponsor.
The applicant in Argente subsequently produced an Australian Federal Police check which was undertaken after lodgement of his application, but before the delegate’s invalidity finding. The Court commented that “the intention of the legislation is that applications are to be made with all necessary documents. An application which is not is to be treated as if it is not an application.” The Court acknowledged the practical difficulties for the applicant in providing the required evidence, but stated that unreasonableness or unfairness in the situation did not affect the decision the delegate made, and was compelled to make.
The Court held that the police check undertaken after lodgement by the applicant could not satisfy the requirement that it was done in the 12 months immediately before the application was made, notwithstanding the lack of logic of this requirement and the fact that the situation appeared to be one where form prevailed over substance. The Court found that, if Schedule 1 has a clear and unambiguous requirement which must be satisfied, then it must be satisfied.
The applicant has conceded that the visa application in this matter is valid, and crucially has also conceded that he only applied for the Australian Federal Police clearance certificate after the visa application was made. The core of the applicant’s submission is that a flexible approach should be taken when interpreting cl.485.213 as it would be unfair or unreasonable in the circumstances to refuse the visa for not meeting the requirement in cl.485.213. The relevant circumstances are that the applicant met the character requirements – the purpose for which the AFP check is required; the applicant was allowed to select ‘no’ in response to this question on the online form yet it did not stop him from completing a (futile) application; and because the strict nature of the regulation is at odds with the ambiguity of the general information available on the Department website’s website at the time of application and on the application form about the AFP check which the applicant relied on.
Although the Tribunal considers that Argente is not directly relevant to the present case, the arguments in the present case about the unreasonable outcome would fail for similar reasons as they did in Argente, noting the clear and unambiguous way in which cl.485.213 is drafted. The words of cl. 485.213 requiring that “when the 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 day the application is made” are plain in meaning and there is no room for interpreting them flexibly to grant an applicant a visa when evidence of a police check has not accompanied the visa application in accordance with the clause, regardless of the applicant’s circumstances.
The substantive criteria for the visa are not satisfied, as the Tribunal finds that the applicant did not apply for a police check within the requisite 12 month period immediately before the visa application was lodged on 30 August 2016. Therefore, the applicant does not satisfy cl.485.213.
The Tribunal has also had regard to whether it should refer the matter to the Minister, and has had regard to the guidelines for Ministerial Intervention. The Tribunal understands that the applicant wishes to remain in Australia, however, it is not satisfied that it should refer this matter to the Minister for his intervention. The applicant is at liberty himself to refer the matter to the Minister if he wishes to do so.
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
The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Bridget Cullen
Member