Mehkri (Migration)

[2018] AATA 5785

Mehkri (Migration) [2018] AATA 5785 (27 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahsan Ali Mehkri

CASE NUMBER:  1825659

HOME AFFAIRS REFERENCE(S):           BCC2018/2780720

MEMBER:Karen Synon

DATE:27 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 27 November 2018 at 2:17pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police check – applied after date of visa application – no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Home Affairs on 20 August 2018 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 25 July 2018. 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 because when the visa application was made, it was not accompanied by evidence that the applicant had applied for an Australian Federal Police check in the 12 months immediately before the day the application was made.

4. When applying for review on 3 September 2018, the applicant provided a copy of the primary decision.

5. The applicant appeared before the Tribunal on 26 November 2018 to give evidence and present arguments.  The applicant’s cousin, Mr Ashan Ali Mehri gave witness 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.

   Evidence relating to police checks

8. 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 (AFP) check during the 12 months immediately before the day the application is made.

9. In the visa application form the applicant answered ‘no’ to the question ‘have you…applied in the last 12 months to the AFP for a check of criminal records?’  Further, no evidence was provided to the department that the applicant had applied to the Australian Federal Police for a police check which in the specified time period which is “the last 12 months”.

10. Before the hearing the applicant provided the following comments in a statement:

    The problem I have faced in the refusal of my application is that I failed to upload my AFP check at the time of the application lodgement of my VC 485 visa.  The blunder I committed unknowingly was that I uploaded my AFP check after one day of application lodgement.  I did not knew (sic) that not uploading my police check would result in the refusal to my application.  I have been a law abiding citizen during the past 2.5 years here in Australia and I have held no criminal records.  I have never broken the law neither I have committed any offence.  I have worked really hard, I have earned the degree for which I came here, and now when I am going through this, I have been under a lot of stress and depression.  I request the officials at the tribunal to look over my case and please help me out of this hassle.

11. During the hearing the Tribunal explained to the applicant the requirement in cl.485.213 and discussed with him the evidence before it which indicates he does not appear to meet the requirements.  In response, the applicant said that he applied within 24 hours and his student visa was expiring on 30 July 2018.  He wanted to make the point that he was confused at the time he was applying and his cousin, who was with him, agreed it was confusing and he was applying late at night.  He did not know it would hinder the application and he has been law abiding since his arrival in Australia.  He repeated that he applied the next day.  It was a very stressful time for him and it was confusing and this led to his visa being refused.   He put to the Tribunal that he applied for it “around the same time”.  The Tribunal explained that it is a time of application criterion and the “around the same time” comment in the Tribunal’s letter refers to the evidence (of having applied for the AFP check) being provided.  The applicant’s cousin, Mr Ashan Ali Mehri gave witness evidence that he was with the applicant when he lodged the application and he uncertain about whether to lodge it.  He told him he could probably click ‘no’ and carry on with the application and he applied to the AFP the next day and uploaded it.  It was submitted that the department’s system does not notify you that you have missed any steps and, given it is so important, the system should give at last a warning.

12. The applicant asked the Tribunal to make a recommendation to the Minister for intervention in this case on the basis that he has a Master of Professional Accounting and there was a bright chance he could get his permanent residency.  He has spent thousands of dollars on his education.  He has sought professional advice and been told that his only option is to go back and apply for another student visa which he does not want to do because there is no more study he wants to do.

13. The Tribunal explained that Ministerial Intervention is exercised in rare cases where there are unique and/or exceptional circumstances and it was not of the view, based on the circumstances he had detailed, that not applying for his AFP check in the 12 months immediately before applying for the 485 visa, are unique and/or exceptional circumstances such that the Tribunal should refer this case.  The Tribunal noted at the hearing that it is open to the applicant to make a direct request for Ministerial Intervention.

14. The Tribunal has considered the applicant's evidence however, as explained to him at the hearing, the requirement was that he must have applied for the AFP check in the 12 months immediately before the application for the Subclass 485 visa was made and he was required to provide evidence of this with his 485 visa application.  The Tribunal acknowledges that the applicant has now obtained an AFP check (dated 27 July 2018) however, this is not sufficient to satisfy the time of application requirements in cl.485.213.  The Tribunal explained at the hearing that it has no discretion in this matter.

15. Clause 485.213 requires the applicant to have applied for an AFP check in the 12 months immediately before the date of application and to have provided evidence of this with the application.  It is not in dispute that the applicant in this case did not apply for the AFP police check in the 12 months immediately before the date of the application and no evidence has been provided with the visa application to indicate he had done so.

16. The Tribunal finds that, when the visa application was made, it was not accompanied by evidence that the applicant had applied for an AFP check during the 12 months immediately before the day the application was made.

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

18. 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

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

    Karen Synon
    Member