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

1. 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).

2. 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.

3. 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.

4. 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. 

5. 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.

6. On 16 August 2017, the Tribunal received a submission and supporting documentation, including a National Police Certificate issued to the applicant by the Western Australian Police on 17 March 2017 indicating that there are no recorded disclosable court outcomes or pending charges in the Australian police jurisdictions in relation to the applicant, and an IELTS English language test report form issued to the applicant on 20 April 2017 for a test he sat on 8 April 2017. The applicant’s agent made the following submissions (in summary):

   · s.46(3) of the Act stated that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application;

   · cl.485.212 provided that the applicant’s visa application had to be accompanied by evidence that he had undertaken a specified English test in the specified period in which he obtained the specified scores;

   · cl.485.213 provided that when the application was made, it was accompanied by evidence that the applicant had applied for an AFP police check during the 12 months immediately before the day the application was made; and

   · since the applicant’s visa application did not meet cl.485.212 or cl.485.213, s.46(3) may apply such that he had not made a valid application for the visa, and the delegate incorrectly refused it when he should have found that it was an invalid application;

   ·    although this submission was not correct, the agent appealed to the Tribunal to use its discretionary power to give the applicant a second chance in that he had all the documents ready when the application was lodged but failed to understand the meaning of the word ‘accompany.’

7. The applicant appeared before the Tribunal by telephone on 17 August 2017 to give evidence and present arguments.

8. The applicant told the Tribunal that he had obtained an Australian police clearance some years ago (he thought it was in 2015) for employment purposes but when he found it, it had expired, and it took him some time to apply for another one.  He said that he assumed the subclass 485 visa application process was the same as his previous student visa applications, which he had made himself; that is, he could lodge the application and then provide various documents, such as the AFP check, afterwards, when requested to do so by the Department. The applicant said that he did not appreciate the significance of not having applied for the AFP check before making his visa application.  He said that at the time of lodgment of his subclass 485 visa application, his agent advised him to focus on getting the required IELTS English test results and his skills assessment for his nominated occupation. The applicant told the Tribunal that he was really distressed that his application had been refused because he had not applied for the AFP clearance before making his visa application.

9. 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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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…

15. The Tribunal notes that Anand’s case dealt with an arguably more flexible formulation of the requirement, as the ‘time of application’ requirement in that case came under the cl.487.21 heading and was not contained in the cl.487.216 criterion itself. While the heading informs the criterion, it is not determinative. However, in the form of the criterion that applies to this case, the criterion itself specifies that ‘when the application was made’ it ‘was accompanied by’ the specified evidence’ and the expressions ‘had applied’ and ‘had made the arrangements’ (contrasted to ‘has applied’ or ‘has made the arrangements’) locate the substantive content clearly in the past.

16. The Tribunal is not satisfied that the applicant’s circumstances fall within the examples contemplated by Anand’s case, given that he did not provide the National Police check to the Department at all, and provided it to the Tribunal some 6 months after lodging his application.  The Tribunal would not regard this as ‘accompanying the application.’

17. The Tribunal has had regard to another more recent case, Nguyen v Minister for Immigration & Anor [2016] FCCA 1523, in which Burchardt J held that the words ‘accompanied by’ in the context of a subclass 485 visa application are ‘imperative’ and suggest that there must be ‘a very close temporal connection’ between the time that the application is lodged and when the evidence which must accompany that application must be provided. In that case, Burchardt J held that a 29 day gap was too great. The Tribunal further notes that in that case, Burchardt J was considering cl.485.223, not cl.485.213. However, cl.485.223 also provides that at the time the visa application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills from the relevant assessing authority, which is essentially the same wording as that used in cl.485.213.

18. Accordingly, the Tribunal finds that to be successful, the applicant must meet cl.485.213 in the way that that provision sets out, and it further finds that he did not do so. He therefore cannot be granted a subclass 485 visa.

19. The Tribunal notes the applicant’s agent’s submission that the applicant’s visa application should be regarded as invalid due to the fact that the requirements of cl.485.213 (and cl.485.212) have not been met, but disagrees with this legal argument. Subsection 46(3) of the Act, in the Tribunal’s view, is referring to the validity requirements for particular visa classes that are set out in Schedule 1 of the Act, the failure to comply with one or more would mean the visa application was not valid. It does not refer to the Schedule 2 criteria such as cl.485.212 and cl.485.213. In the Tribunal’s view, failure to meet the Schedule 2 criteria does not render a visa application invalid; it simply means that the requirements for grant of the visa cannot be met. The Tribunal is not satisfied that the applicant’s subclass 485 visa application was invalid; rather, it failed to meet a mandatory criterion (cl.485.213) for the grant of the visa.

20. The Tribunal acknowledges the dismay of the applicant that such a seemingly trivial failure could derail his visa application in this way; however, it must apply the legislation as it stands, and it considers that cl.485.213 is clear. The Tribunal finds that the applicant does not meet it, and thus cannot be granted a subclass 485 visa. There is no discretion within the subclass 485 visa criteria for the Tribunal to overlook or waive the requirements of cl.485.213.

21. 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.

    Alison Mercer
    Member