Khan (Migration)

[2017] AATA 1899

Khan (Migration) [2017] AATA 1899 (13 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Waseem Ahmed Khan

CASE NUMBER:  1710811

DIBP REFERENCE(S):  BCC2017/1008738

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 11:35am

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 5 May 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 14 March 2017. 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 which required that when his visa application was lodged, it was accompanied by evidence that he had applied for an Australian Federal Police (AFP) check during the 12 months immediately before the day on which the visa application was made. The delegate noted that the applicant answered ‘no’ in his online visa application to the question asking whether he had applied for an AFP check in the last 12 months.

4. The Tribunal received a review application from the applicant on 21 May 2017. It was accompanied by a copy of the delegate’s decision, and an authority by which he appointed a registered migration agent, Mr Mubashar Ahmed Nizamani, as his representative and authorised recipient for correspondence for the purposes of the review.

5. 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 31 August 2017.

6. On 17 August 2017, the applicant’s agent provided a written submission to the Tribunal, with accompanying documents, including a copy of an AFP check issued to the applicant on 8 May 2017 indicating that there are no disclosable court outcomes recorded against his name, copies of Departmental correspondence to other applicants including a request for documents (including the AFP check) issued to an applicant after lodgment of his subclass 485 visa application and a grant letter for the same applicant.  In his written submission, the agent made the following points:

   ·    it was human error that the applicant was not asked if he had obtained an AFP check in the 12 months immediately before he made the visa application;

   ·    the applicant’s last substantive visa was expiring on 15 March 2017 and his subclass 485 visa application was lodged the day before this, so it was purely unfortunate that he was not asked for the AFP check before this;

   ·    based on previous practice, the Department had always sent requests about any outstanding documents, including the AFP check, before making a decision on the subclass 485 visa application, and examples of this were included from other clients, where they had not provided an AFP clearance at the time of application;

   ·    in several cases known to the agent, other applicants had been granted subclass 485 visas by the Department even though they did not apply for AFP checks before making the visa application and only applied for, and provided, these later after receiving a request from the Department;

   ·    the applicant had completed his studies and fulfilled the primary subclass 485 visa criteria.  He aspired to be a trained Chef and had done everything necessary to pursue this. A subclass 485 visa would give him a chance to get necessary training to fulfil his career goals of becoming an internationally trained Chef. Similar opportunities were not available in Pakistan as Australia had better restaurant facilities;

   ·    he should not be deprived of this opportunity due to a human error, and the Tribunal was requested to consider his application favourably, particularly since he had now provided an AFP check which demonstrated that he had no criminal record.

7. The applicant participated in a telephone hearing with the Tribunal on 31 August 2017 to give evidence and present arguments. He confirmed that he knew that he had to lodge his subclass 485 visa application before his last student visa expired on 15 March 2017 but his agent did not tell him that he had to have the AFP check by then, even though he had all the other required documents for the visa application by 14 March 2017.  He was simply not informed by his agent of this crucial requirement. The applicant said that he first realised the seriousness of this issue when he got the refusal decision, and he obtained an AFP check within 2 days of this, which he had provided to the Tribunal. 

8. The applicant confirmed that his agent had shown him other cases where other applicants had been able to get subclass 485 visas granted by the Department despite apparently not having applied for AFP checks in the 12 months before lodging their visas, and only applying for the AFP check after the Department requested them to do so. He considered that it was unfair that they were successful where he was not as this was inconsistent and very distressing for him. The applicant said that this did not make sense to him and he felt that he was being unduly punished for something that was not his fault, and which he had now rectified once he became aware of it. He was particularly aggrieved that he had done the ‘right thing’ by engaging a migration agent to assist him with the application and yet the agent had not given him correct advice.

9. The Tribunal discussed with the applicant its preliminary view that the wording of cl.485.213 was very specific and inflexible, and that even if other visa applicants appeared to have received favourable outcomes from the Department in situations similar or identical to his own, the Tribunal had to apply the wording of cl.485.213 in his case. The Tribunal noted that, in relation to the agent’s failure to advise him that he needed to have applied for the AFP check before making his visa application, he may have cause to lodge a complaint for incorrect advice by the agent with the Migration Agents’ Registration Authority (MARA) but that this did not overcome the requirement for the Tribunal to apply cl.485.213 in his case to reach a decision about his legal entitlement to the subclass 485 visa.

10. 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

11. 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.

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

    ·the applicant lodged a  subclass 485 visa application online on 14 March 2017;

    ·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 17 August 2017, the applicant provided to the Tribunal a copy of an AFP check issued to him on 8 May 2017.

13. 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 8 May 2017, there is no evidence that he applied for this in the 12 months immediately before 14 March 2017, as required by cl.485.213. 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.

14. The Tribunal acknowledges that the applicant understood from his agent that the AFP check could be provided to the Department after lodgment of his visa application. It further acknowledges that the Department may have made decisions to grant subclass 485 visa applications to applicants in similar circumstances to the applicant, although (a) it is unable to be certain how similar their cases were to the applicant’s, and (b) even if the Department did so, such a decision was not legal, in the Tribunal’s view, as cl.485.213 would not have been satisfied. These are in any case not binding on the Tribunal, which must apply the law to the facts of the applicant’s case to reach the correct legal decision about his entitlement to the visa for which he has applied.

15. The Tribunal 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 how this might have been dealt with by the Department in relation to applications made by others, and regardless of the fact that the applicant may have received incorrect, or incomplete, advice from his agent) as it is bound to apply the law and not a summary of it. The applicable law does not give the Tribunal any power to waive or overlook the need to meet cl.485.213. 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