Maharjan (Migration)

[2019] AATA 6045

Maharjan (Migration) [2019] AATA 6045 (26 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Anu Maharjan
Mr Sujan Amatya

CASE NUMBER:  1915635

DIBP REFERENCE(S):  BCC2019/1287743

MEMBER:Jennifer Cripps Watts

DATE:26 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 November 2019 at 2:43pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – AFP check requested – provided NSW Police Certificate – did not attend hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 485.216, 485.311, r 2.03AA

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 (the delegate) 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 March 2019. The criteria for a Skilled (Provisional) (Class VC) visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: r.2.03AA(1). In this case, cl.485.216 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in r.2.03AA(2).

4. Regulation 2.03AA(2)(a) requires that, if requested, the applicant has provided a statement, however described, from a relevant authority in a country where the person resides or has resided that provides evidence about whether or not the person has a criminal history. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal may waive the requirement in r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

5. The applicant applied for the visa on 14 March 2019.  The delegate refused to grant the visas on 17 June 2019 on the basis that the first-named applicant (the applicant) did not meet r.2.03AA because when the delegate requested that the applicant provided an Australian Federal Police (AFP) Check, the applicant provided a New South Wales Police Force clearance.  On 17 June 2019 the applicant applied for review of the decision and provided the Tribunal with a copy of the delegate’s decision to refuse the visa.

6. On 21 October 2019, the Tribunal sent the applicant, through his authorised recipient and registered migration agent Mr Wilson Sharma, an invitation to a hearing scheduled on 26 November 2019. In the invitation, it was requested that the applicant provide evidence of having applied for the AFP Check within the 12 month period before she applied for the visa. 

7. The Tribunal received no response to the hearing invitation and no additional documents, nor a request for postponement of the hearing.  The applicant did not attend their hearing and gave no reason for the non-attendance.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant has provided a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history. Relevantly, in this case, that is an AFP Check.

   Has the applicant provided a statement from an appropriate authority?

10. The applicant applied for the visa on 14 March 2019. In the online application form, the applicant answered ‘Yes’ in response to the question ‘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?’ and provided reference numbers 1339042 and 1339028 in her online application as evidence of the two applicants having applied for the police check.

11. On 16 May 2019, the application was assessed and the Department requested in writing that the applicant provide within 28 days an AFP Check, and included with the request detailed information about how to obtain one. On 26 May 2019, and again on 12 June 2019, the applicant provided NSW Police Force National Police Certificates dated 14 March 2019 for herself and the second-named applicant. This was not the document that was described in the request from the Department.

12. The delegate considered the evidence and whether it was not reasonable for the applicant to provide the AFP Check.  The delegate decided that the wrong police check had been provided, it was not reasonable for the applicant not to provide a police check, and that the applicant did not therefore satisfy r.2.03AA(2)(a) and that r.2.03AA(3) did not apply.

13. After the visa was refused, the applicant sent an e-mail to the Department claiming not to be aware of the different types of police check. However, when the written request for additional information was sent by the Department on 16 May 2019, the applicant was informed what she needed to provide and how to obtain it, including a link to the relevant website.

14. On 16 May 2019 the applicant applied for review of the decision and provided the Tribunal with a copy of the delegate’s decision to refuse the visa.

15. The applicant has not provided a statement from an appropriate authority and therefore does not meet r.2.03AA(2)(a). The Tribunal has therefore considered whether it would not be reasonable for the applicant to provide the statement, and whether the requirement to provide it should be waived.

16. The Tribunal has considered the applicant’s claim that she was not aware there are different types of police check.  The applicant did not submit that this would be a reason that she should not be required to provide a police check.  The Tribunal has considered the claim nonetheless and is not satisfied that is reasonable that the applicant should not provide one.  The question relating to the AFP Check is clearly put, on the first page of the online application, asking if application has been made (specifically) to (emphasis added) the AFP (and not to any other agency).  In the circumstances, the Tribunal is not satisfied that lack of awareness of different types of police checks is a satisfactory reason that the applicant should not have to provide the appropriate statement.

17. The Tribunal is not satisfied that it is not reasonable for the applicant to provide the requested statement from an approved authority. The waiver in r.2.03AA(3) does not apply. Therefore, as the statement has not been provided, the applicant does not meet r.2.03AA(2)(a).

    Conclusion

18. On the basis of the above findings, the applicant does not meet  r.2.03AA(2).

    Secondary applicant

19. To satisfy the secondary criteria in cl.485.311, the secondary applicant must have made a combined application with a person who satisfies the primary criteria and of whose family unit they are a member, or be a member of the family unit of a person who holders a 485 visa on the basis of satisfying the primary criteria.

20. There is no evidence or information before the Tribunal that the secondary applicant meets the secondary criteria in cl.485.311.  As the decision to refuse the applicant’s visa has been affirmed, the Tribunal must also affirm the decision to refuse the visa of the secondary applicant.

    DECISION

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

    Jennifer Cripps Watts
    Member