Kaur (Migration)

[2019] AATA 532

Kaur (Migration) [2019] AATA 532 (15 February 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Ms Inderpreet Kaur Mr Manpreet Singh

CASE NUMBER:  1733084

DIBP REFERENCE(S):  BCC2017/4459167

MEMBER:  K. Chapman

DATE AND TIME OF

ORAL DECISION AND REASONS:          15 February 2019 at 3:19 pm (QLD time)

DATE OF WRITTEN RECORD:               21 February 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police check – 12 months immediately before visa application – standard disclosure National Police Certificate arranged by employer – specific type of Australian Federal Police check  ­– each person included in the application must also satisfy requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 485.213, 485.311

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 12 December 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) Subclass 485 visas under the Migration Act 1958 (‘the Act’).

1. At the hearing on 15 February 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. The applicants applied for the visas on 2 August 2017. Class VC contains Subclass 485. 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.

1. The delegate refused to grant the visas on the basis that the first named applicant (hereafter referred to as ‘the applicant’) did not satisfy clause 485.213 of Schedule 2 to the Regulations, because in their view, at the time 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 years of age, had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made.

1. The applicant appeared before the Tribunal on 15 February 2019 to give evidence and present arguments. The second named applicant, Mr Manpreet Singh, also attended but decided not to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. Both the applicant and the second named applicant confirmed that they understood the interpreter.

1. The Tribunal also received documents prior to the hearing and at the hearing. Material received at the hearing includes an Australian Federal Police National Police Check consent form signed by Mr Manpreet Singh on 2 February 2019, a complete disclosure Australian Federal Police check for Ms Kaur dated 8 February 2019, a complete disclosure Australian Federal Police check for Mr Singh dated 4 January 2018, and another complete disclosure Australian Federal Police check for Ms Kaur dated 3 January 2018. All documentary evidence submitted before and during the hearing has been duly considered by the Tribunal.

1. 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 years of age, had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.

1. During the review hearing the applicant was invited to provide evidence in support of their application for review. When asked by the Tribunal if she and each person included in the visa application who was at least 16 years of age applied for Australian Federal Police checks during the 12 months immediately before the day the Subclass 485 visa application was made, the applicant told the tribunal that was not the case. She advised that she had applied for the clearance but her husband had not done so.

1. The Tribunal raised with the applicant that she answered, “No”, to the following question in the visa application, ‘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?’ The Tribunal indicated that the answer to this question tended to confirm her  earlier  oral  evidence,  that  herself  and  her  husband  had  both  not  applied  for   the

clearance prior to the time of application for the visa. The applicant confirmed to the Tribunal that this was the case, that is, that both her and her husband had not applied for the Australian Federal Police checks prior to the time of the Subclass 485 visa application.

1. The Tribunal referred to one Federal Police certificate, which was sent to it by the applicant, which was addressed to a Ms Dianne Nguyen. The applicant confirmed that that was her employer’s name and that that check had first been arranged by the employer. The Tribunal raised with the applicant that she provided it with a copy of that certificate, which was a standard closure certificate, from the Australian Federal Police and that it was dated 28 November 2016 and asked why it was not submitted with her visa application. The applicant advised the Tribunal that she gave it to her lawyer.

1. The Tribunal discussed with the applicant the submission of certificates made at the hearing and the consent form signed by Mr Singh dated 2 February 2019. The applicant confirmed that that consent form is the most recent application for an Australian Federal police check completed by her husband. The Tribunal discussed with the applicant that she had  submitted certificates in respect of herself from the Australian Federal Police dated 3 January 2018 and 8 February 2019 and also that she had submitted a certificated dated 4 January 2018 in respect of her husband Mr Manpreet Singh.

1. The Tribunal raised with the applicant that these documents do not tend to suggest that both herself and her husband applied for the Australian Federal Police checks before the time of application for the Subclass 485 visa. The applicant confirmed this to the Tribunal and she accepted that only she had applied for the Australian Federal Police check prior to the time of the Subclass 485 visa application and that her husband had not done so.

1. The Tribunal invited the applicant to provide further oral evidence about the decision to refuse to grant her and her husband Subclass 485 visas. The applicant advised that when she applied for the Subclass 485 visa she was not sure that her husband needed to apply for it and she explained to the Tribunal that she was confused because in prior Student visa applications, the automated system allowed her to submit further information. But when she answered ‘no’ to the question concerning the Police checks in the Subclass 485 application the automated system did not allow for the uploading of further documentation.

1. The applicant explained that she misunderstood the application process using the  automated system and the applicant confirmed that she had no further evidence to provide  in the case. The Tribunal invited the second named applicant, Mr Manpreet Singh, to give oral evidence and he did not wish to do so.

1. Prior to the hearing concluding, the applicant confirmed that she had no further evidence to provide to the Tribunal. The Tribunal notes that the applicant applied for the visa on 25 November in 2017 and provided it with a copy of a standard disclosure National Police Certificate dated 28 November 2016 issued by the Australian Federal Police. The certificate indicates that there are no disclosable court outcomes recorded against the applicant’s name.

1. Additionally, the applicant also submitted the Australian Federal Police National  Police Check Consent Form signed by her husband Mr Manpreet Singh dated 2 February 2019, and a complete disclosure Australian Federal Police National Police Certificate dated 4 January 2018 in respect of her husband Mr Manpreet Singh. She also provided two complete disclosure certificates from the Australian Federal Police with respect to herself dated 8 February 2019 and 3 January 2018.

1. The Tribunal notes that the legislation requires the applicant to demonstrate she applied for an Australian Federal Police check during the 12 months immediately before the application

was made. It does not impose a requirement for a specific type of Australian Federal Police check, although the Department’s policy is to require an Australian Federal Police Complete Disclosure National Police Certificate.

1. In the view of the Tribunal, these matters must not be conflated and clearly the legislative requirement prevails in the present matter. The Tribunal is therefore prepared to accept that the applicant herself applied for an Australian Federal Police check during the 12 months immediately before the day the application is made. However, clause 485.213 also requires that when the visa application was made it was accompanied by evidence that each person included in the application who was at least 16 years old, had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.

1. The second named applicant, Mr Manpreet Singh, who is the husband of the applicant, was over the age of 16 years at the time of the visa application according to information provided in the visa application. Accordingly, the applicant must demonstrate that he also applied for the necessary Police clearance in the required time frame.

1. There is no documentary evidence before the Tribunal suggesting that the second named applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the visa application was made. The applicant confirmed to the Tribunal in her oral evidence that her husband had not applied for the Australian Federal Police check at the time she applied for the Subclass 485 visa.

1. The Tribunal notes that it must apply the law to the facts of this matter in an impartial and dispassionate fashion, even if the result is upsetting to the applicant and the secondary applicant.

1. Having carefully considered the evidence, the Tribunal finds that at the time the Subclass 485 visa application was made, it was not accompanied by evidence that the applicant, and each person included in the application who was at least 16 years of age, had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made. Therefore the applicant does not satisfy clause 485.213.

1. 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.

1. The second named applicant does not satisfy clause 485.311, given his wife does not satisfy the criteria for the visa.

DECISION

1. The Tribunal, constituted by Member Chapman, affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas, at 3.19 pm on Friday, 15 February 2019.

K. Chapman Member