Lau (Migration) - [2017] AATA 1581

Lau (Migration) [2017] AATA 1581 (29 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Wei Leong Lau
CASE NUMBER:  1709805
DIBP REFERENCE(S):  BCC2017/720064
MEMBER:Alison Mercer
DATE:29 August 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 29 August 2017 at 5:57pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Australian Federal Police check – Applicant did not apply for AFP check within 12 months immediately before visa application made
LEGISLATION
Migration Act 1958, ss 46(3), 65
Migration Regulations 1994, Schedule 2, cl 485.212, cl 485.213, cl 485.216, cl 485.223, cl 487.21, cl 487.216

CASES
Anand v Minister for Immigration and Citizenship [2013] FCA 1050
Nguyen v Minister for Immigration & Anor [2016] FCCA 1523
Panchal v Minister for Immigration [2012] FMCA 562

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 April 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 22 February 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.
The delegate refused to grant the visa because he found that the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations. This required that at the time that the applicant made his visa application, it was accompanied by evidence that he had applied to the Australian Federal Police (AFP) for a police clearance in the 12 month period ending immediately before the date on which he made his visa application. The delegate found that the applicant did not meet this requirement as he answered ‘no’ to the question of whether he had applied for an AFP clearance in the last 12 months in his online visa application.
The Tribunal received a review application from the applicant on 6 May 2017, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Nathan Wong, as his representative and authorised recipient for correspondence.
On 28 July 2017, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing by telephone on 17 August 2017. He was requested to provide all documents he intended to rely upon within 7 days of receiving the hearing invitation letter.
On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 1581
Decision Date: 29 August 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision not to grant a Skilled (Provisional) (Class VC) visa, subclass 485. The central dispute concerned whether the applicant had complied with a specific visa requirement relating to Australian Federal Police (AFP) checks.

The primary legal issue before the Tribunal was to determine whether the applicant had satisfied clause 485.213 of the Migration Regulations 1994. This clause mandates that a visa application must be accompanied by evidence that the applicant, and any other person included in the application aged 16 or over, had applied for an AFP check within the 12 months immediately preceding the date of the visa application.

The Tribunal found that the applicant lodged his visa application on 22 February 2017, answering "no" to having applied for an AFP check in the preceding 12 months and providing no documentary evidence to that effect. The applicant conceded he had not applied for an AFP check in the relevant period. While the applicant later provided a National Police check issued by the West Australian Police on 17 March 2017, the Tribunal determined this did not constitute an AFP check as required by the regulation and, crucially, did not "accompany" the visa application. Relying on precedent, the Tribunal held that "accompanied by evidence" implies the evidence should be submitted with or at the same time as the application, or at least within a reasonably short period thereafter, and that evidence submitted five months after the application was lodged did not meet this requirement.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence relating to police checks 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. Based on the available evidence, the Tribunal makes the following findings:·the applicant lodged a subclass 485 visa application online on 22 February 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 did not provide any documentary evidence relating to this·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 16 August 2017, the applicant provided a copy of an National Police check issued to him on 17 March 2017 to the Tribunal. As discussed with the applicant at the hearing, the wording of cl.485.213 requires that he had applied for an Australian Federal Police (AFP) check during the 12 months immediately before the day the application is made. The applicant conceded that he did not do so. Accordingly, the Tribunal must find that the visa application was not accompanied by evidence that he had applied for an AFP check in the relevant period. The Tribunal has regard to the case of Panchal v Minister for Immigration [2012] FMCA 562, in which Scarlett FM considered the phrase ‘accompanied by evidence’ in relation to cl.485.216 (identically worded to cl.485.213), and concluded that the phrase ‘… clearly refers to something other than that which is contained in the online application form’ (at [84]). As noted above, it was not disputed that the applicant did not provide the AFP check (or any evidence that he had applied for one) with his visa application. The Tribunal notes that the applicant provided a National Police check issued to by the West Australian Police him on 17 March 2017 to the Tribunal on 16 August 2017. Leaving aside the question of whether this is an AFP check, as referred to in cl.485.213 (and the Tribunal does not consider that it is, even though it provides the same information as an AFP check would have done, as it was issued not by the AFP but by the West Australian Police), the Tribunal finds that it did not accompany the visa application. It has had regard to the case of Anand v Minister for Immigration and Citizenship [2013] FCA 1050, in which Katzmann J considered an identically worded clause (cl.487.216) and held that:It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria. That is why relevant evidence is to accompany the application. Consistent with that purpose the evidence should be submitted with or at the same time as the application. Yet, it is not necessarily inconsistent with that purpose that the evidence is submitted after the visa application is lodged, although how long after is another question… For the above reasons, I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged. Evidence supplied around the time of the application may be sufficient. I doubt, for example, if accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application. It might even extend beyond that. Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within a week, and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged…

Decision

Reasons for decision

As this is the only relevant subclass in this case, the decision under review will be affirmed. DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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