Jeon (Migration)

[2019] AATA 5910

Jeon (Migration) [2019] AATA 5910 (16 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jooni Jeon

CASE NUMBER:  1916588

DIBP REFERENCE(S):  BCC2019/1267804

MEMBER:Jennifer Cripps Watts

DATE:16 December 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 16 December 2019 at 2:27pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – criminal history check – request for postponement – provided Korean criminal check – did not provide AFP check within timeframe – 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, 4002, 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 13 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 and 4002 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 applicant provided the Tribunal with a copy of the delegate’s decision with her review application.  It is noted in the delegate’s decision that the applicant did not meet 2.03AAbecause when the delegate requested, among other documents, that the applicant provide a statement by an appropriate authority, described as an ‘Australian Federal Police (AFP) clearance National Police Check’ (AFP Check), an AFP Check was not provided and the applicant did not therefore meet cl.485.216.  The visa was refused and the applicant notified of the refusal on 17 June 2019.

6. Another issue arises on the review, that is, that the visa application must have been accompanied by evidence that the applicant had applied to the AFP for a check of criminal records during the 12 months immediately before the day the visa application was made.  In the hearing invitation, the Tribunal requested that the applicant provide ‘information about whether your visa application was accompanied by evidence that you had applied for an AFP check’ prior to the hearing.  At the beginning of the hearing, this requirement – to meet. cl.485.213 – was explained to the applicant and discussed with her relevant to her circumstances.

7. On 21 October 2019, the Tribunal sent the applicant an invitation to attend a hearing scheduled on 26 November 2019.  The applicant requested in writing that the hearing be postponed until February 2020 because she would be overseas.  The applicant was informed that the request had been considered and that she could attend the hearing by phone.  A response was received from the applicant who said that she would be available to attend a phone hearing, but as she was going to be in Rwanda which may have poor phone connectivity, requested that the hearing be rescheduled once she had returned to South Korea, any time from 15 December 2019.  The Tribunal rescheduled the hearing to 16 December 2019 for the applicant to attend by phone, which she did.  The member was in Sydney.  The applicant was invited to advise the Tribunal if she needed anything clarified or repeated.  The phone line was clear and uninterrupted throughout the Tribunal hearing.  The applicant did not request an interpreter and the Tribunal is satisfied that she spoke excellent English and the Tribunal is satisfied that the applicant participated meaningfully in her hearing. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. The issue in this case is whether the applicant has provided a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history (cl.485.216) and, if she has provided the statement, whether evidence that she had applied for a AFP check of criminal records during the 12 months immediately before the day of the visa application accompanied the application.

11. The meet 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, evidence of applied for the AFP Check needed to accompany the visa application.  If the applicant did not apply for the AFP Check 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. To satisfy r.2.03AA(2)(a), the applicant must provide a statement (however described) provided by an appropriate authority relating to the applicant's criminal history. The statement was described by the delegate, when the request was made on 17 May 2019, 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. These issues were raised with the applicant, both in the written hearing invitation and at the Tribunal hearing, and it was explained to her that even though she had now provided the Tribunal with an AFP Check, she would need to provide evidence that accompanying her visa application was evidence that she had applied for an AFP check of criminal records during the 12 months immediately before the visa application, to satisfy cl.485.213.

    Has the applicant provided a statement from an appropriate authority?

14. The applicant lodged the Subclass 485 visa application that is the subject of this review on 13 March 2019.  In the online application, the following question and answer appeared:

    Q.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?

    A.        Yes.

15. Further on in the online application, there is a section to provide evidence of having applied to the AFP.  The applicant entered the reference number 2019-A-3201 for an application she had made on 26 February 2019.

16. When her application was being assessed, on 17 May 2019, the delegate requested in writing that the applicant provide additional documents, including an AFP Check (described specifically as an ‘Australian Federal Police complete disclosure certificate’, as noted in the delegate’s decision) and was informed she had 28 days from the day after the email to provide the information.  On 18 May 2019, the applicant provided a Korean police check, dated 26 February 2019 with reference number 2019-A-3210, the same reference number that was provided in the online visa application.  This was confirmed by the applicant at the Tribunal hearing and she gave reasons why she had not provided the AFP Check, which was the statement that was requested by the delegate on 17 May 2019.

17. In her written statement, and at the Tribunal hearing, the applicant explained that she was mistaken and thought the Korean criminal check and AFP Check would be interchangeable.  The Tribunal confirmed with the applicant that the statement that needed to be provided, when requested by the Minister, must have been the statement that was requested, relevantly an AFP Check. 

18. After the 28 days had expired, which the delegate in their decision includes was on 15 June 2019, the applicant was notified that the visa had been refused, on 17 June 2019. 

19. An AFP Check, dated 18 June 2019, accompanied the review application made on 24 June 2019.  The applicant confirmed at the Tribunal hearing that she had applied for it after her visa was refused as she realised she had provided the wrong criminal check in response to the delegate’s request sent on 17 May 2019 for an AFP Check.

20. However, prior to the hearing, it was not clear on the information before the Tribunal whether the applicant had applied for the AFP Check prior to the refusal of the visa or whether she was claiming that there was evidence that accompanied the visa application that she had applied to the AFP for a check of her criminal records.  On 21 October 2019, the Tribunal sent the applicant a hearing invitation and requested that she provide evidence that her visa application was accompanied by evidence that she had applied for an AFP Check in the 12 months prior (to meet cl.485.213). 

21. The Tribunal acknowledges that the applicant has now provided an AFP Check, as described by the delegate.  However, the applicant does not claim and there is no evidence before the Tribunal that she applied for the AFP Check during the 12 months immediately prior to the day the visa application was made. 

    Conclusion

22. For the reasons given, the applicant does meet cl.485.213 of Schedule 2 to the Regulations.

    DECISION

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

    Jennifer Cripps Watts
    Member