Madahar (Migration)

[2017] AATA 2109

Madahar (Migration) [2017] AATA 2109 (27 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amanpreet Singh Madahar
Mrs Navjot Kaur Madahar

CASE NUMBER:  1707855

DIBP REFERENCE(S):  BCC2017/602019

MEMBER:Alison Mercer

DATE:27 October 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 27 October 2017 at 10:05am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Application for Australian Federal Police check made during 12 months before visa application – Compassionate circumstances regarding an applicant’s health – Potential grounds for Ministerial intervention – Ministerial intervention where person has an ongoing application

LEGISLATION
Migration Act 1958, ss 65, 351

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 5 April 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 14 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 visas because the first named applicant (the applicant) did not satisfy cl.485.213 of Schedule 2 to the Regulations because the delegate found that the visa application was not 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 found that the applicant had answered ‘no’ to the question in the online application form as to whether he had applied for an AFP check in the last 12 months. The delegate also refused to grant a subclass 485 visa to the second named applicant (the spouse of the applicant) on the basis that she did not meet the secondary visa criteria to be a member of the family unit of a person who met the primary criteria, and there was no evidence that she met the primary visa criteria in her own right.

4. The Tribunal received a review application from the applicants on 11 April 2017. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Ketan Juvekar, to be their representative and authorised recipient for correspondence.

5. On 7 August 2017, the Tribunal wrote to the applicants via their agent to invite them to a hearing on 31 August 2017.  They were requested to provide any documents and/or submissions they wished to rely on prior to the hearing.

6. On 31 August 2017, the Tribunal received a request from the applicants’ agent to postpone the hearing. He forwarded an email from the applicant who indicated that he had injured his back at work on 30 August 2017 and was unable to attend work for 2 days. Also provided were scanned copies of a medical certificate dated 30 August 2017 indicating that the applicant had a medical condition and would be unfit for work from 31 August 2017 to 1 September 2017 inclusive, and a prescription for pain medication.

7. The applicants did not attend the hearing on 31 August 2017.

8. On 5 October 2017, the Tribunal wrote to them advising that the Tribunal had agreed to reschedule the hearing to 12 October 2017. They were again asked to provide any submissions or documents they wished to rely upon by 11 October 2017.

9. The applicant appeared before the Tribunal on 12 October 2017 to give evidence and present arguments. The Tribunal also received oral submissions from his agent.  They also provided documentary evidence to the Tribunal consisting of:

   ·     copy of email from the applicant to the Tribunal sent on 11 October 2017 setting out the history of his visa application;

   ·     AFP checks for both applicants issued 21 July 2017 showing that there are no disclosable court outcomes recorded against either of their names; and

   ·     Indian police clearances for both applicants; and

   ·     screenshots from the applicant’s Immi online account showing dates that various documents were uploaded to this account in connection with the applicant’s online subclass 485 visa application.

10. The applicant confirmed the contents of his email statement regarding the history of his application: he explained that he originally came to Australia as a student, to undertake a Masters in IT to improve his qualifications and career prospects.  An education agent in India prepared and lodged his student visa application. The applicant needed to extend this by 6 months once in Australia, to cover the fact that his course end date was later than originally anticipated. He made this application for another student visa himself, using the online application process.  He noted in connection with that application that when he went online, the Department’s online system had 3 icons for documents: ‘required’, ‘recommended’ and ‘received’ for the student visa.

11. The applicant stated that when he came to make his subclass 485 visa application after completing his Masters degree, he went online to do so but it was not clear whether it was a mandatory requirement to have obtained and uploaded an AFP check at the time he lodged the application.  He noted that the documents attachment screen only listed the AFP check as a ‘recommended’ document, not a ‘required’ one. In fact, all the listed documents (including things like his passport) were marked as ‘recommended,’ which confirmed his belief that the Department would request any outstanding documents he needed to provide after lodgment of the visa application. This impression was reinforced by commentary on the website indicating that applicants ‘might’ be requested to provide additional documents after lodgment of their visa applications. He did upload an AFP check on 16 February 2017 but this was an old one that was more than 12 months old, and when he realised that it was not recent enough, he tried to delete it but the Immi online system did not allow him to do so.  He believed that the Department would request him to provide a new one if that was needed, and therefore waited to receive such a request. However, the next thing that happened was that he received the refusal decision.

12. The applicant said that he was shocked and dismayed by this and reiterated that the online application process did not reflect how strict cl.485.213 was, which was misleading to people in his position, who were not lawyers or migration agents, and who were apply online themselves for subclass 485 visas. He rang the Department to express his concern that the online information about the subclass 485 visa did not clearly indicate that certain documents (including the AFP check) were mandatory at the time of application. The Department officer with whom he spoke said that he could provide feedback to the Department about its procedures but that it would not change the outcome of his visa application. He noted that the Department now appeared to have changed its online process for subclass 485 visas to make it clearer that the AFP check was mandatory to have before applying for the visa, but he reiterated that this was not clear when he applied. The applicant emphasised that he had relied on the online application process to his detriment, as he could have obtained the AFP check before making his visa application if he had been aware that this was mandatory. He noted that both he and his wife had now provided AFP checks showing that they had no criminal records.

13. The applicant and his agent confirmed that the applicant had also been invited by the Department to apply for a subclass 489 visa (State Sponsored) and they had made an application on 28 July 2017. It had been accepted, and they had been asked to provide additional documents in connection with it in mid-September 2017, which they had done. However, it was unclear how long the Department would take to process this application.  The applicants’ agent stated that the Department’s website indicated that due to low levels of applications, there was no data available about how long it would take for the subclass 489 visa to be processed.

14. The Tribunal discussed with the applicant and his agent its view that legally, cl.485.213 was very clear in its requirements and an AFP check applied for and obtained after the visa application was lodged would not satisfy the regulation. Nor would an AFP clearance that was obtained more than 12 months before the lodgment of the visa application. The Tribunal acknowledged the points made by the applicant about the fact that the Department’s online processes did not make this clearer to applicants but reiterated that it was required to apply the law in reaching a conclusion about the applicant’s entitlement to the visa.

15. The applicant and his agent indicated that they would like to request that the Tribunal refer the matter to the Minister pursuant to s.351 of the Act in the event of an unsuccessful review application, based on the fact that the applicant was essentially misled by the information on the Department’s website (and oral evidence he received when he rang the Department information line) and the fact that the applicant’s wife was suffering from significant complications to do with her diabetes. The applicant said that his career prospects had been significantly affected by this outcome, as he had been applying for work in his field in Australia but was unable to succeed due to potential employers’ concerns about the fact that he held a bridging visa. He had now been out of the Indian IT field for a number of years due to pursuing his studies in Australia, and would be disadvantaged if he had to now return there and look for work.

16. The Tribunal agreed to defer its decision for a week to enable further information to be provided but gave no guarantee that it would make a recommendation, particularly since it appeared that the applicant had another potential visa pathway. The applicants’ agent said that he wanted to provide information about the applicant’s wife’s medical condition.

17. On 19 October 2017, the Tribunal received an email from the applicants’ agent in which he reiterated that he and the applicants requested that the Tribunal refer the matter to the Minister for his intervention under s.351 of the Act in the event of an unsuccessful outcome to the review application. The applicants’ agent stated that the request was made on the basis that:

    ·    the applicant had a very high level of education and was an asset to the Australian economy and society;

    ·    the applicant made an error in not providing an AFP clearance obtained in the previous 12 months when he made his visa application but this was not a grave error, given that he at all relevant times did not have a criminal record (in Australia or India) and thus would have met Public Interest Criterion 4001 (PIC 4001) character requirements, and the AFP check he obtained after he made the visa application demonstrated this; and

    ·    the points made in the hearing were reiterated in seeking the Tribunal’s referral for Ministerial intervention.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. Evidence relating to police checks cl.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.

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

    ·the applicant lodged a  subclass 485 visa application online on 14 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 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 12 October 2017, the applicant provided to the Tribunal a copy of an AFP check issued to him on 21 July 2017.

21. 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. He had applied for an AFP check more than 12 months before 14 February 2017 (in connection with a previous student visa application) and he uploaded this to the Department on 16 February 2017. Although he subsequently provided an AFP clearance issued to him on 21 July 2017, there is no evidence that he applied for this before 14 February 2017, as required by cl.485.213 (and the applicant conceded that he had not done so). As such, neither of the AFP checks obtained by the applicant satisfies cl.485.213 as his application was not accompanied by evidence that he had applied for an AFP check during the 12 months immediately before the day the application is made.

22. 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.

23. As noted above, the applicants and their agent have requested that the Tribunal refer this matter to the Minister for Immigration and Border Protection for his personal intervention pursuant to s.351 of the Act. This section gives the Minister a personal, non-compellable power to replace a decision of the Tribunal with a decision that is more favourable to the applicant if the Minister thinks that it is in the public interest to do so. Guidelines on the types of unique or exceptional circumstances in which a case might be referred to the Minister for consideration are set out on the Department’s website, as are guidelines on cases which it is considered that it would be inappropriate for the Minister to consider intervening: >

    The guidelines on unique or exceptional circumstances include compassionate circumstances regarding an applicant’s health that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship, exceptional economic, scientific, cultural or other benefit that would result from an applicant being permitted to remain in Australia, and circumstances not anticipated by the relevant legislation, or clearly unintended consequences of the legislation, or where the application of the relevant legislation leads to an unfair or unreasonable results in the case of a particular outcome.

24. The Tribunal notes that, at the hearing, the applicants’ agent raised the second named applicant’s medical condition (being diabetes which had recently worsened) as a potential ground for Ministerial intervention. However, no medical evidence has been provided to the Tribunal about the second named applicant that would enable it to consider this. The agent also argued that the applicant would be an asset to the Australian economy and society due to his high level of education. While the Tribunal acknowledges that the applicant has professional qualifications in IT from India and Australia, it is not persuaded that this constitutes an exceptional economic, scientific, cultural or other benefit to Australia in the absence of any other distinguishing achievements. Finally, the Tribunal considers that the legislation in this area, including cl.485.213, is clear and its consequences cannot be said to be unintended. The Tribunal does, however, agree that the discrepancy identified by the applicant (and by other applicants before the Tribunal in previous cases) between the strict and prescriptive wording of cl.485.213 and the more generalised information in the online application form and the Department’s website about the AFP check that was in place at the time that the applicant made his visa application, have led to unfair or unreasonable results in the applicant’s case, in that his application has failed due to a relatively minor legal error in circumstances where it is clear that he has at all times had a clear criminal record in Australia and it appears that he would otherwise have met all the requirements for the grant of the subclass 485 visa.

25. However, the Tribunal has also had regard to the fact that the Department’s guidelines for cases in which it is considered that it would be inappropriate for the Minister to intervene pursuant to s.351 of the Act include where ‘the person has an ongoing application for a substantive visa (either onshore or offshore) with the Department.’ Given that the applicants have a pending subclass 489 visa application with the Department, the Tribunal considers that it would be inappropriate for it to refer the matter to the Minister in the circumstances of this case. It notes that it remains open for the applicants to do so themselves if they feel that their case falls within the Minister’s guidelines or raises other unique or exceptional circumstances.

    DECISION

    The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Alison Mercer
    Member