Huang (Migration)

[2017] AATA 1877

Huang (Migration) [2017] AATA 1877 (13 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xuwu Huang

CASE NUMBER:  1703311

DIBP REFERENCE(S):  BCC2016/4213785

MEMBER:Alison Mercer

DATE:13 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 13 October 2017 at 10:00am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Applicant did not apply for Australian Federal Police check during 12 months immediately before visa application made

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 10 February 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 13 December 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.

3. 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 found that the application was not accompanied by evidence that the applicant had applied for an Australian Federal Police (AFP) check during the 12 months ending immediately before the date on which the applicant made his visa application. The delegate noted that the applicant had answered ‘no’ to the question in the online application of whether he had applied for an AFP check in the last 12 months.

4. The Tribunal received a review application on 24 February 2017, which was accompanied by a copy of the delegate’s decision, a copy of an AFP check issued to him on 16 February 2017 showing no disclosable court outcomes against his name, a Chinese police clearance and residence certificate (with English translations), copies of the applicant’s Chinese tertiary qualification and academic transcript (with English translations), form 80, copies of the applicant’s Australian qualifications, transcripts and letters of completion, evidence of his Australian health insurance cover and his International English Language Testing System (IELTS) test result dated 5 November 2016. The applicant also appointed a registered migration agent, Mr Rui Zou, as his representative and authorised recipient for correspondence.

5. On 1 March 2017, the applicant’s agent provided a submission in which he stated that the applicant had to return to China in December 2016 to visit his terminally ill grandmother and thus was unable to obtain an AFP clearance before he made the visa application on 13 December 2016. The agent noted the applicant had now provided one showing that he had no criminal record, and agent asked the Tribunal to remit the application on this basis. 

6. On 28 July 2017, the Tribunal wrote to the applicant via his agent to invite him to attend a telephone hearing with the Tribunal on 17 August 2017.  He was asked to provide any submissions and/or documents he wished to rely upon before the hearing.

7. On 2 August 2017, the applicant’s agent provided a detailed written statement from the applicant of the same date, a death certificate for the applicant’s grandmother in China dated 21 December 2016 and a certificate of cremation for her dated 25 December 2016 (with certified English translations), and his academic transcript from Curtin University for his English course, Bachelor of Commerce (Accounting) and partial Master of Commerce degrees.

8. The applicant participated in a telephone hearing with the Tribunal on 17 August 2017 to give evidence and present arguments. He confirmed the contents of his written statement and indicated that he had completed his Bachelor of Commerce (Accounting) in Australia and had gathered most of the documents he required to lodge his subclass 485 visa application by 13 December 2016, but then had to travel back to China at very short notice on 15 December 2016 due to his grandmother becoming terminally ill.  The applicant said that he was very close to his grandmother because she essentially brought him up as his parents had divorced when he was 9 and his father had a new family while his mother went overseas to work.  He said that he was closer to his grandmother than to his mother. 

9. The applicant told the Tribunal that his grandmother died while he was in China and the funeral was held on 26 December 2016.  He was mainly responsible for making all of the arrangements and ensuring the formalities were carried out.  The applicant said that while he was in China, he obtained his Chinese police clearance but was unable to obtain an AFP check while in China as access to the AFP website was blocked there.  He knew that he had to have this, but he had to wait until he returned to Australia to apply for that, which he did in mid-January 2017.  Unfortunately, there was some kind of administrative complication, and the request did not go through, so he had to reapply to the AFP which he did in February 2017. He received his AFP clearance on 16 February 2017, but the Department had already refused his visa.  The applicant confirmed that his agent had told him that he needed to have the AFP check at the time he made his visa application but his plans to get the AFP check were disrupted by his grandmother’s situation and his sudden need to travel to China.  The applicant said that he experienced significant grief over his grandmother’s death and this preoccupied him for some time.  He told the Tribunal that his grandmother wanted him to be successful and therefore he hoped that he could be granted the subclass 485 visa application so that he could remain in Australia for a further period and gain work experience that would benefit his career.  He noted that both his AFP and Chinese police clearance showed he had no criminal record.

10. The Tribunal discussed with the applicant its preliminary view that the wording of cl.485.213 was very specific about when an applicant had to have applied for an AFP check, and that it did not allow the Tribunal to take into account an AFP check obtained after lodgment of the subclass 485 visa application, even if an applicant had compassionate or compelling reasons as to why he or she was unable to obtain one before making the visa application.

11. 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

12. 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.

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

    ·the applicant lodged a  subclass 485 visa application online on 13 December 2016;

    ·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 24 February 2017, the applicant provided to the Tribunal a copy of an AFP check issued to him on 16 February 2017.

14. 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 check issued to him on 16 February 2017, there is no evidence that he applied for this in the 12 months immediately before 13 December 2016, as required by cl.485.213 (and he did not claim to have done so). As such, this AFP check 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.

15. The Tribunal acknowledges that the applicant’s plans to obtain an AFP check before making his visa application were disrupted by the urgent need to travel to China due to his grandmother’s illness and subsequent death, and that this was a period of significant emotional difficulty for the applicant. The Tribunal further accepts that the applicant is dismayed that such a seemingly technical oversight could derail his entire subclass 485 visa application, particularly since he has now provided an AFP check which shows he has no criminal record in Australia. However, the Tribunal is required to be satisfied that cl.485.213 is met, and that it is met in the way set out in its clear wording (regardless of the compassionate reasons the applicant may have had for not obtaining it in the specified period) as it is bound to apply the law as it is written. The applicable law does not give the Tribunal any power to waive or overlook the need to meet cl.485.213 (for instance, because of the applicant’s compassionate or compelling circumstances). The Tribunal must find that the applicant does not meet cl.485.213.

16. 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

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

    Alison Mercer
    Member