Longwe (Migration)

[2019] AATA 5916

Longwe (Migration) [2019] AATA 5916 (13 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Calvin Longwe

CASE NUMBER:  1911770

HOME AFFAIRS REFERENCE(S):          BCC2019/1062248

MEMBER:Jennifer Cripps Watts

DATE:13 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 13 December 2019 at 5:01pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – required AFP check – provided ACIC check – did not provide AFP check within time frame – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 485.213

CASES

Anand v MIAC [2013] FCA 1050

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 (the delegate) on 24 April 2019 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 4 March 2019. Visa Class VC contains Subclass 485. 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 because the application was not accompanied by evidence that the applicant had applied for an Australian Federal Police check (AFP check) during the 12 months immediately before the day the application was made.

4. On 11 May 2019 the applicant applied to the Tribunal for merits review and provided a copy of the delegate’s decision with the review application.  On 1 November 2019, the Tribunal sent the applicant an invitation to attend a hearing scheduled on 13 December 2019.  The applicant responded to the invitation indicating he would attend.

5. The applicant appeared before the Tribunal on 13 December 2019 to give evidence and present arguments. He brought some friends with him for support, but indicated they were not required to give oral evidence.  

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets cl.485.213 of Schedule 2 to the Regulations, which was the same substantive issue on which the visa was refused.

   Evidence relating to police checks

8. It was explained at the Tribunal hearing that to be granted a Subclass 485 visa an applicant must meet all the primary criteria including, relevantly, cl.485.213 which requires that when the application is made it is accompanied by evidence that the applicant has applied for an AFP Check during the 12 months immediately before the day the visa application is made.  This can be in the form of a receipt or reference number and there is an opportunity to provide this information in the online application form. 

9. An applicant is not required to provide an AFP Check with the visa application, but evidence that they have applied for an AFP Check needs to accompany the application and is required for an applicant for a Subclass 485 visa to meet cl.485.213.

   The applicant’s evidence relating to the police check

10. The applicant applied for the Subclass 485 visa that is the subject of this review on 4 March 2019. 

11. In the applicant’s online application, the following question and answer appears:

    Q.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?

    A.        No.

12. The applicant provided the Tribunal with his written submissions and he gave oral evidence at the Tribunal hearing.  Essentially, he says that his visa was refused on the same day he applied for the AFP Check, 24 April 2019 and, for that reason, evidence of the AFP Check application accompanied the application.  He says he mistakenly answered ‘no’ relating to the question that was answered by him relating to the AFP Check in the online application.  He has provided the Tribunal with a copy of an AFP Check dated 30 April 2019 which certifies there are no disclosable court outcomes.

    a.When did you apply for that, before or after?  AFP check.

13. The applicant applied for the visa on 4 March 2019 and provided documentary evidence indicating he submitted an application to the Australian Criminal Intelligence Commission (ACIC) on 4 February 2019 and received the report (the ACIC Check) on 5 February 2019. 

14. In his written submissions, the applicant referred to Tribunal decisions where applicants ‘had not applied to the AFP for a check of criminal record during the 12 months immediately before their visa applications were made’. However, the applicant provided evidence in his case that he had applied to ACIC and not the AFP.

15. The applicant also submitted that there is authority that he should have been provided with an opportunity to provide the relevant document before his visa was refused, because he claims that he had applied for a criminal check.  He cites the case of Anand v MIAC [213] FCA 1050.  Briefly, in Anand, the applicant applied for a Subclass 487 visa and neither the delegate, nor the Tribunal on review (differently constituted), was satisfied that evidence of an application for an AFP Check accompanied the visa application which was required by the Regulations.  The Tribunal distinguishes Anand’s case from the present case on review on the basis that in Anand the applicant had evidence that he had applied for an AFP Check during the relevant period of 12 months and it was a matter of whether it had ‘accompanied’ his application.  The applicant was informed of the Tribunal’s view at the hearing.

16. The applicant in this case has provided the Tribunal with evidence that he applied for an ACIC check during the 12 months immediately before the day the visa application was made. The applicant completed a Bachelor of Laws at the University of Notre Dame in November 2017. Upon completion of his degree, he obtained the ACIC check to apply for admission as a Legal Practitioner in New South Wales. It seems reasonable to the Tribunal that the applicant thought that the ACIC Check, which was sufficient for his admission as a Legal Practitioner, would be sufficient for the purpose of being granted a Subclass 485 visa. However, cl.485.213 of Schedule 2 to the Regulations clearly states:

    485.213

    When the application was made, it was accompanied by evidence that:

    (a)     The applicant; and

    (b)     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.

17. The Tribunal has no discretion to waive the criteria.

18. The check an applicant must have applied for to meet cl.485.213 is an AFP Check.  The visa application was not accompanied by evidence that the applicant had applied for the ACIC check, the AFP Check or any police check at the time the visa application was made.  The ACIC and AFP Checks were provided to the Tribunal with the review application.  Although the applicant did subsequently provide an AFP Check, after his visa was refused, he confirmed at the hearing that he had not applied for it during the 12 months immediately before the visa application was made.  The Tribunal notes for the record that both the ACIC and AFP Checks certify the applicant has no disclosable court outcomes recorded against his name.

19. It is accepted that the applicant provided an AFP Check dated 30 April 2019 that he applied for on the day his visa was refused, 24 April 2019.  However, even if he had provided evidence he had applied for the AFP Check on 24 April 2019, this is the ‘on the day’, not ‘immediately before the day’ the visa application was made, as required by cl.485.213.

20. Therefore the applicant does not satisfy cl.485.213.

21. 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

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

    Jennifer Cripps Watts
    Member