De Silva Patabadi Maddumage (Migration)

[2018] AATA 1444

De Silva Patabadi Maddumage (Migration) [2018] AATA 1444 (8 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Avishka Dulanjana De Silva Patabadi Maddumage

CASE NUMBER:  1724435

DIBP REFERENCE(S):  BCC2017/3044389

MEMBER:Amanda Mendes Da Costa

DATE:8 May 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 08 May 2018 at 9:31am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian police check requirements – Applied for a police check before the visa application was made – Evidence of police checks did not accompany the visa application – Applicant unable to satisfy cl 485.213 – Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention

LEGISLATION
Migration Regulations 1994, ss 65, 351

Migration Regulations 1994 Schedule 2 cls 485.213, 485.223

CASES
Anand v MIAC [2013] FCA 1050
Nguyen v Minister for Immigration & Anor [2016] FCCA 1523

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 3 October 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 23 August 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.

4. The applicant appeared before the Tribunal on 19 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages.

5. The applicant was represented in relation to the review by his registered migration agent, Mr De Silva.

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 at the time 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 (AFP) check during the 12 months immediately before the day the application is made.

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

9. The applicant provided a copy of the Department’s decision to the Tribunal for the purposes of the review, in which it is noted that the applicant applied for the visa on 23 August 2017 and indicated in the visa application form that an AFP check had not been applied for in the past 12 months.  The Tribunal has been provided with a copy of an email from the AFP to the applicant, confirming that his application for a police check was made on 20 August 2017.  The Tribunal accepts this document as genuine and is satisfied that the applicant had in fact applied for an AFP police check before the visa application was made.

10. The applicant subsequently obtained an AFP check which was confirmed by letter dated 4 October 2017.

11. The applicant claimed at the hearing that he was “not in a good mental state’ at the time he completed the visa application due to family difficulties and financial worries.  The applicant told the Tribunal that when completing the visa form he thought that the question about whether he had applied for a police check in the past 12 months meant whether he had obtained a police check in the past 12 months.

12. The meaning of ‘accompanied’ has been considered in the recent cases of Anand v MIAC [2013] FCA 1050 and Nguyen v Minister for Immigration & Anor [2016] FCCA 1523.

13. In both of these cases the Courts were prepared to accept that evidence accompanying an application could be supplied after the application is lodged but held that there must still be a temporal connection with the application and that evidence supplied around the time of application may be sufficient.

14. In Anand’s case, Katzman,J observed:

    “… I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged. Still, there must be some temporal connection with the application.  Evidence supplied around the time of the application may be sufficient.  I doubt for example, if the accompanying evidence appeared in an annexure which through advertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application.  It might even extend beyond that.  Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within the week and he did so, it might be said that the evidence accompanied the application.  But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as her, five months after the application was lodged and two days after the decision was made.  Language cannot be stretched so far that it snaps (cf. Wielgus v Removal Review Authority [1993] 1 NZLR 73 at 79).”

15. The Tribunal is satisfied that the applicant did not provide any evidence of having applied for an AFP check during the 12 months immediately before the day the application was made, to the Department.  He did provide such evidence to the Tribunal.  However, the Tribunal notes that whilst his application for review was lodged on 9 October 2017, he did not provide evidence that that he applied for a police check during the 12 months immediately before the visa application was made, to the Tribunal, until 19 December 2017.

16. Mr De Silva submitted to the Tribunal that the applicant a case note in the Department’s file 3 October 2017 indicates that the applicant’s case officer initially planned to request additional information regarding the visa application information from the applicant.  Mr De Silva argued that this demonstrated that the Department did not apply a strict interpretation of the term ‘accompanied’ which is consistent with their practice of allowing applicants to go back and upload documents any time before the delegate’s decision is made.

17. In the Tribunal’s view, the above authorities suggest that whilst it is possible to submit documents after the application was made, there must be a temporal connection between the application and the documentation that accompanies it.  The Tribunal notes that the requirement in cl.485.223 is that the evidence of a police check must accompany the application “when the visa application is made”.  That, in the Tribunal’s view, supports the interpretation that the evidence must be submitted at, or at least shortly after, or around the time of the application.  The Tribunal is not satisfied that a four month delay (as occurred with the applicant) meets that temporal requirement.  The Tribunal notes that the four month delay also includes the time in which the applicant did not submit any evidence of him applying for the AFP check to the Department.

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

19. 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

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

21. Having regard to the applicant’s circumstances, in particular the fact that the applicant applied for an AFP check prior to lodging his visa application and having considered the ministerial guidelines relating to the Minister’s discretionary power under s351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

    Amanda Mendes Da Costa
    Member