Hopen (Migration)

[2018] AATA 2210

Hopen (Migration) [2018] AATA 2210 (26 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nadja Hopen

CASE NUMBER:  1730306

DIBP REFERENCE(S):  BCC2017/3114601

MEMBER:Antonio Dronjic

DATE:26 April 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 26 April 2018 at 9:50am

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 65, 351
Migration Regulations 1994, Schedule 2, cl 485.213

CASES
Anand v Minister for Immigration and Citizenship [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 14 November 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 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 because, when the visa application was made, it was not 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 was made.

4. The applicant applied to the tribunal on 1 December 2017, for review of the delegate’s decision. With her application, she submitted a copy of the primary decision record.

5. The applicant was invited to participate in a hearing on 17 April 2018, to give evidence and present arguments.

6. On 10 April 2018, the applicant submitted:

   ·Letter from Jason Wood MP dated 28 March 2018; and

   ·Copy National Police Certificate issued by the AFP on 29 August 2017.

7. In her evidence, the applicant stated that she applied for the AFP Clearance on the same day (29 August 2017) the application for subclass 485 visa was lodged with the department. She submitted the following documentary evidence at the commencement of the hearing:

   ·The AFP Receipt dated 29 August 2017 as evidence of police clearance application being made on that day;

   ·Copy visa application form evidencing that she answered no to the question ‘have you and all persons included in the application applied in the last 12 months to the AFP for check of criminal records”

8. I granted the applicant additional time until 24 April 2018 to provide additional documentary evidence and submissions.

9. On 23 April 2018, the applicant provided submissions (Tribunal folios 41-47) prepared by her migration agent stating that the applicant answered ‘no’ to the question on the visa application form as she mistakenly believed that non-migrating family members were required to apply and obtain AFP clearances; that the visa application and AFP clearance application were lodged with the department on the same day; that the on-line visa application form did not contain information that the applicant must apply for AFP clearance the day before he or she lodges the visa application; that the applicant did not provide AFP clearance certificate to the Department because the on-line visa application form states that the ‘Department will contact the applicant if it requires further information’.

10. 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

11. 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.

12. In support of her submissions, the applicant relied on decision in Anand v Minister for Immigration and Citizenship [2013] FCA 1050. In this case, the Court considered the meaning of ‘accompanied by’ in the requirement that the application is accompanied by evidence that the applicant has applied for an Australian Federal Police Check for the purposes of cl.485.216 which was relevant to visa applications made on or before 23 March 2013. The Court was prepared to accept that evidence accompanying an application could be supplied after the application is lodged. The Court held that there must still be a temporal connection with the application, and evidence supplied around the time of application may be sufficient.

13. The Tribunal also had regard to another more recent case, Nguyen v Minister for Immigration & Anor [2016] FCCA 1523 (Nguyen’s case) , in which Burchardt J held that the words ‘accompanied by’ in the context of a subclass 485 visa application are ‘imperative’ and suggest that there must be ‘a very close temporal connection’ between the time that the application is lodged and when the evidence which must accompany that application must be provided.

14. Based on the evidence before me, I accept that in this case, the evidence that the applicant has applied for an Australian Federal Police Check did in fact accompanied the visa application. However, as of 23 March 2013, pursuant to cl.485.213, the applicant (and each person 16 and over) is required to apply for an Australian Federal Police check during the 12 months immediately before the day the application is made (emphasis added).

15. The applicant conceded in her evidence and submissions, that the visa application and AFP clearance application were lodged with the department on the same day, the 29 August 2017.

16. I my view, the ordinary meaning of the phrase ‘immediately before the day the visa application was made’ used in cl.485.213, is clear and incapable of being interpreted to mean anything else but what is stated in the regulation. If the legislator intended to allow the applicants lodgement of the visa applications on the same day when they applied for an Australian Federal Police check they would have used different wording in the regulations.

17. Accordingly, I am not satisfied that 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.

18. It follows that the applicant does not satisfy cl.485.213 of the Regulations. As this is the only relevant subclass in this case, the decision under review will be affirmed.

19. I note that the applicant may be able to apply to the Minister for the exercise of his discretion pursuant to s.351 of the Act.

    DECISION

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

    Antonio Dronjic
    Member