KAZMI (Migration)

[2019] AATA 307

KAZMI (Migration) [2019] AATA 307 (8 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sajjad Ahmed KAZMI

CASE NUMBER:  1812971

DIBP REFERENCE(S):  BCC2018/140039

MEMBER:Jennifer Cripps Watts

DATE:8 February 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 08 February 2019 at 5:02pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – character requirements – incorrect police check clearance submitted – no AFP check at time of application – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA Schedule 2 cls 485.213, 485.216 Schedule 4 PIC 4001

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 9 January 2018. 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. The applicant’s visa was refused on 18 April 2018.  He lodged a review application with the Tribunal on 4 May 2018, within time, and provided the Tribunal with a copy of the delegate’s decision to refuse the visa.

4. To meet cl.485.213 of Schedule 2 to the Regulations, the visa application must be accompanied by evidence that each applicant and each person included in the application who is at least 16 has applied for an Australian Federal Police check (AFP Check). This was explained to the applicant at the beginning of the hearing.

5. 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(1) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in r.2.03AA(2).

6. Regulation 2.03AA(2)(a) requires that, if requested, the applicant has provided a statement (however described) 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.

7. The visa was refused on 18 April 2018 on the basis that the applicant did not meet r.2.03AA because, when it was requested, he had not provided a statement from a relevant authority: described by the delegate as a Complete Disclosure Australian Federal Police (AFP) National Police Certificate (AFP Complete Disclosure Certificate).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The common criteria for a post 23 March 2013 Subclass 485 visa application include that when the application was made, it was accompanied by evidence that the applicant (and each person 16 and over) had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made (cl.485.213).  

10. The Tribunal needs to be satisfied that the visa application was accompanied by evidence that the applicant had applied for the AFP Check prior to making the visa application and, when it was requested, provided the statement from an appropriate authority, described by the delegate as an AFP Check.

11. It was explained to the applicant at the hearing that he must have provided information with his visa application that he had applied for an AFP Check during the 12 months immediately before the visa application was made:  cl.485.213. 

12. The applicant indicated in his visa application that he had applied for an AFP Check, as required by cl.485.213 of Schedule 2 to the Regulations. The delegate requested that the applicant provide a statement from an appropriate authority, described in the request as an AFP Complete Disclosure Certificate. The applicant provided a police check from the New South Wales Police, not an AFP Complete Disclosure Certificate as requested.

    Has the applicant provided a statement from an appropriate authority?

13. When the applicant applied for the Subclass 485 visa that is the subject of this review on 5 August 2018 he indicated he had applied to the Australian Federal Police in the last 12 months for a check of criminal records. 

14. In the online application, the applicant provided a reference number, 1115218, in his name as evidence that he had applied for the AFP Check on 3 January 2018 relating to the reference number.  The receipt that accompanied the visa application was a NSW Police Force Payment Receipt for $55.90, paid by Mastercard.

15. A requirement of cl.485.216 of Schedule 2 to the Regulations is that an applicant for a Subclass 485 visa must satisfy, relevantly and among other criteria, the character requirement PIC 4001. Criteria for application character tests and security assessments is set out in r.2.03AA of the Regulations: the Minister may request a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history

16. On 9 March 2018, his application was assessed and the Department wrote to the applicant requesting evidence of an AFP Check.  A ‘Request Detail’ document and checklist of the information being requested was attached.  Specifically, in the ‘Request Detail’ document, it is stated that an ‘Australian Federal Police (AFP) National Police Check’ is required and that it needs to be a ‘Complete Disclosure AFP National Police Certificate’.  A weblink is provided and, in the alternative, a phone number is provided for applicants who do not have internet access.  The applicant was also informed in the attached ‘Request Detail’ document that if he is unable to obtain a ‘Complete Disclosure AFP National Police Certificate’, he should demonstrate, with documentary evidence if possible, that he has made a genuine attempt to obtain it.  It is also included in the document that if the applicant does not provide the ‘Complete Disclosure AFP National Police Certificate’ the application may be refused. 

17. On 9 April 2018, the applicant provided a National Police Certificate issued by New South Wales Police on 13 March 2018, the one referred to in his visa application.  On 18 April 2018, the visa was refused because the applicant had not provided the AFP Police check that had been requested.

18. The applicant was given the opportunity to provide oral evidence about the matter.  He said it was a mistake.  He applied for the New South Wales National Police Certificate, not the ‘federal one’.  He then went overseas for his wedding and was busy.  When he returned to Australia, he received an email requesting what he described as the ‘certificate’ which the Tribunal takes to mean the request that was made for an AFP Complete Disclosure Certificate in the Department’s email of 9 March 2018.  The applicant says he uploaded the certificate and then received notification that his visa had been refused.  He said he applied for the ‘federal one’ but by then it was too late.

19. The Tribunal finds that the visa application was not accompanied by evidence that the applicant had applied for an AFP Check during the 12 months immediately before the day the visa application was made.  The AFP Check the applicant has provided to the Tribunal is dated 20 April 2018 and was applied for, on the applicant’s evidence, after the visa was refused.  He had not applied for an AFP Check at the time he made the visa application.  The applicant does not therefore meet cl.485.213 of the Regulations.

    Conclusion

20. On the basis of the above findings, the applicant does not meet cl.485.213.

21. 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

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

    Jennifer Cripps Watts
    Member