Lam (Migration)

[2019] AATA 533

Lam (Migration) [2019] AATA 533 (19 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kai Wei Lam

CASE NUMBER:  1807209

HOME AFFAIRS REFERENCE(S):           BCC2017/4684718

MEMBER:K. Chapman

DATE:19 February 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 19 February 2019 at 9:56am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police check – 12 months immediately before visa application – confusing information on departmental website – difficulties with AFP website ­– decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 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 27 February 2018 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, Mr Kai Wei Lam, applied for the visa on 8 December 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 on the basis that the applicant did not satisfy cl.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.

4. The applicant appeared before the Tribunal on 15 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Dr Kay Colthorpe. The applicant submitted documents in support of his application for review and these have been duly considered by the Tribunal.

5. 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

6. 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.

7. During the review hearing, the applicant was invited to provide evidence in support of his application for review. When asked by the Tribunal if he applied for an Australian Federal Police check during the 12 months immediately before the day the Subclass 485 visa application was made, the applicant confirmed that he did not.

8. The Tribunal raised with the applicant that he 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 this documentary evidence tended to confirm the applicant’s oral evidence that he had not applied for the Australian Federal Police check prior to the time of the visa application, inviting his comment. The applicant agreed this was the case.

9. The Tribunal invited the applicant to provide further oral evidence about the decision to refuse to grant him the Subclass 485 visa. The applicant advised he was informed by a Departmental Officer in Brisbane that he could apply for the Subclass 485 visa, in order to obtain a Bridging Visa B at short notice to travel offshore, and submit supporting documentary evidence at a later time. The applicant also advised that he was confused by the information contained on the Department’s website concerning the provision of supporting documentation for his visa application. Further, he submitted that once offshore he attempted to apply for an Australian Federal Police check but the pertinent website did not function properly whilst he was in that location and he therefore made the application when he returned to Australia.

10. When asked by the Tribunal how long he had intended to apply for the Subclass 485 visa, the applicant advised that it had been a long held intention of his whilst he was completing his studies. The applicant also reconfirmed that he applied for the Australian Federal Police check after the time of the visa application. He informed the Tribunal that he is currently employed by the University of Queensland in an academic role and hoped to continue in that employment.

11. The Tribunal also took oral evidence from Dr Kay Colthorpe which may be summarised as follows. She advised that the applicant applied for the Subclass 485 visa in good faith, he is employed as a tutor at the University of Queensland where she is an academic, and he is a person of good character. The Tribunal accepts this evidence. The applicant also confirmed to the Tribunal that he had no further evidence to provide prior to the conclusion of the review hearing.

12. The Tribunal notes that the applicant applied for the visa on 8 December 2017 and provided a copy of a Complete Disclosure National Police Certificate dated 2 March 2018 issued by the Australian Federal Police. The Certificate indicates there are no disclosable court outcomes recorded against the applicant’s name. Additionally, the applicant provided to the Tribunal a copy of the receipt dated 28 February 2018 from the Australian Federal Police for the aforementioned Certificate. These documents point to the applicant making his application for the Australian Federal Police check after the time of the visa application.

13. The Tribunal notes the applicant submitted documentation indicating that he consented to the Australian Federal Police check on 7 December 2017, but could not complete the necessary application due to difficulties with the pertinent website. The Tribunal accepts that the applicant did make an attempt to apply for the Australian Federal Police check in December 2017. However, the Tribunal notes the applicant conceded in submitted correspondence, and in his oral evidence, that he did not actually make the application for the Police check until after he applied for the Subclass 485 visa. Further, the Tribunal notes that the applicant declared in his visa application that he had not applied in the last 12 months to the Australian Federal Police for a check of criminal records.

14. When the evidence detailed above is considered in conjunction with the dates of the submitted Australian Federal Police check and the receipt for this check, which are almost 3 months after the time of the visa application, the Tribunal is not satisfied that the applicant made the necessary Australian Federal Police check application prior to the time of the visa application.

15. The Tribunal accepts that the applicant was confused regarding the requirement to apply for the Australian Federal Police check prior to the time of the visa application. However, regardless of the reasons for such confusion, the Tribunal 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.

16. 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 cl.485.213.

17. 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.

18. The Tribunal notes that it is open to the applicant to seek Ministerial Intervention in his case and he may wish to consider doing so.

    DECISION

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

    K. Chapman
    Member