JINDEL (Migration)

[2021] AATA 5215

JINDEL (Migration) [2021] AATA 5215 (18 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JAYANT JINDEL

CASE NUMBER:  1912644

HOME AFFAIRS REFERENCE(S):          BCC2019/1243128

MEMBER:Andrew George

DATE:18 October 2021

PLACE OF DECISION:  Darwin

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

Statement made on 18 October 2021 at 6:00pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police check – difference between ‘making’ an application and ‘lodging’ an application – not accompanied by required evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 55, 65
Migration Regulations 1994 (Cth), 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 Home Affairs on 14 May 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 12 March 2019. 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 (Cth) (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. The delegate found:[1]

   “As the applicant did not apply for the required Australian Federal Police clearance during the 12 months immediately before the day they lodged their visa application, I find the applicant did not satisfy the requirements of Regulation 485.213.”

   [1] Decision Record/2.

4. The Tribunal notes that the delegate went on to find that cl.485.231 was not met. Given the reasons contained in the Decision Record, the Tribunal is satisfied that references to cl.485.231 are mere typographical errors and they are immaterial.

5. The applicant appeared before the Tribunal by video-link from Perth, where he now resides, on 7 October 2021 to give evidence and present arguments. The applicant was represented by Mr Moses Mark of KBA Global Pty Ltd, who appeared by telephone.

6. As is usual in such matters, the Secretary did not give the Tribunal a written argument relating to the issues arising in relation to the decision under review: s.358.

   Evidence relating to police checks

7. 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” (emphasis added). This is different to the language used in the Decision Record, which speaks of the day the application is ‘lodged’.

8. The Tribunal is satisfied that the application was lodged on 12 March 2019, 2:23:09 PM (AEDT). At Page One of that application, the applicant was asked:

   “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?”

9. The applicant answered “No”.

10. Further, at Page Eight of the application the applicant was asked to:

    “Provide Australian Federal Police check details for all person included in this application who are 16 years of age or over”.

11. No information, such as a reference number, was included.

12. On 9 April 2019, being after lodgement and prior to decision, the applicant received a National Police Certificate.[2] The applicant’s evidence is that he then attached that certificate to his application. It the absence of objective evidence of this action before the Tribunal, the Tribunal finds that the applicant unsuccessfully tried to submit the certificate and honestly believed that he had done so do so. In making this finding, the Tribunal notes that as at the date of the delegate’s decision on 13 May 2019 that no such certificate was on Departmental systems.[3]

    [2] AFP Reference: XXXX690PC.

    [3] Decision Record/2.

13. The Tribunal has considered the difference between ‘making’ an application as the Regulations require, and ‘lodging’ an application as the Decision Record states. The Tribunal finds that the application was made on 12 March 2019 when:

    a.the application was lodged; and

    b.the appropriate fee tendered.[4]

    [4] Transaction reference number: XXXXX XWAP6.

14. An application that is merely lodged, where the appropriate fee remains untendered, is not made.[5]

    [5] Sands & Anor v Singh & Ors [2015] EWHC 2219 (Ch), [20].

15. The Tribunal has considered the operation of s.55 of the Act, whereby the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision. However, this section does not alter the prescriptive nature of cl.485.213. Such discretion properly lies with the Minister personally under s.351 of the Act.

16. Accordingly, the Tribunal is not satisfied 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.

17. Therefore, the applicant does not satisfy cl 485.213.

18. 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

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

    Andrew George
    Member