Lim (Migration)

[2017] AATA 1878

Lim (Migration) [2017] AATA 1878 (13 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kiak Meng Lim

CASE NUMBER:  1707377

DIBP REFERENCE(S):  BCC2017/253013

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 10:43am

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 20 March 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 19 January 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 at the time the visa application was made, it was accompanied by evidence that the applicant 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 application to the question of whether he had applied for an AFP check in the last 12 months and had not provided any documentary evidence that he had done so.

4. The Tribunal received a review application from the applicant on 6 April 2017.  It was accompanied by a copy of the delegate’s decision, an AFP check issued to the applicant on 22 March 2017 indicating that there are no disclosable court outcomes listed against his name, and a copy of the applicant’s Singapore – Cambridge Certificate of Education (Ordinary Level) dated 2005.

5. On 28 July 2017, the Tribunal wrote to the applicant to invite him to attend a telephone hearing on 31 August 2017 to discuss his review application.

6. At the telephone hearing on 31 August 2017, the applicant told the Tribunal that he was not sure whether he had to obtain the AFP check before he made his visa application or whether he could provide it afterwards (as had been the case with various documents that he provided after lodgment of his student visa application(s)). He went to the Department to seek advice but was told to check online. What he read online still did not clarify this issue, but he thought that he could upload the AFP check later, after lodging his visa application.  He was simply not aware that it was a mandatory requirement that it had to have been obtained and provided with his visa application, and he had no idea that his visa application would fail because of this issue.  He noted that he had now provided an AFP check, and it was clear that he did not have a criminal record.

7. The Tribunal discussed with the applicant its view that the wording of cl.485.213 is very specific, and required that an AFP check had to be obtained before he made his visa application, and evidence of that had to accompany the application (regardless of what the online visa application said or whether or not this was clearly indicated in the Department’s website information).

8. 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

9. 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.

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

    ·the applicant lodged a  subclass 485 visa application online on 19 January 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 6 April 2017, the applicant provided to the Tribunal a copy of an AFP check issued to him on 22 March 2017.

11. 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 22 March 2017, there is no evidence that he applied for this in the 12 months immediately before 19 January 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.

12. The Tribunal acknowledges that the applicant was not clear whether the AFP check had to be provided with the application, or whether it could be provided afterwards. It further acknowledges that the online form itself has some ambiguity on this issue. 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 be summarised in the online application) 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.

13. 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

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

    Alison Mercer
    Member