Mohamed Bashir (Migration)

[2020] AATA 4617

Mohamed Bashir (Migration) [2020] AATA 4617 (2 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nadzirah Mohamed Bashir

CASE NUMBER:  1827152

HOME AFFAIRS REFERENCE(S):          BCC2018/2976876

MEMBER:Susan Trotter

DATE:2 October 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 02 October 2020 at 5:14pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Australian Federal Police check – no application for check in 12 months preceding visa application – application for police check after visa application lodged – tribunal has no discretion – decision under review affirmed

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 Home Affairs on 8 September 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 8 August 2018. 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 on the basis that the applicant did not satisfy cl.485.213 because the evidence provided by the applicant did not support that the applicant had, as required, applied for an Australian Federal Police check during the 12 months immediately before the day the visa application was made. Rather, the evidence was that the applicant applied for an Australian Federal Police certificate on 29 August 2018, after the date of the visa application.

4. The applicant lodged an application with the Tribunal on 17 September 2018 and provided a copy of the delegate’s decision.

5. The applicant appeared before the Tribunal on 21 September 2020 to give evidence and present arguments.

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether, when the visa application was made, it was accompanied by evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.

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. The Tribunal discussed with the applicant at hearing its concern, as also canvassed in the delegate’s decision provided by the applicant to the Tribunal, that on the evidence the applicant’s visa application was not accompanied by evidence that the applicant had applied for an Australian Federal Police check in the 12 months immediately before the date of the visa application and that she did not apply for the Australian Federal Police check until after the date of the visa application.

11. The applicant told the Tribunal at hearing that her understanding is that the visa was refused because of the late submission of the police check. She said that her previous visa was expiring at the end of August and she was trying to get the visa application done. When she has previously applied for visas it (a Federal Police check) was stated on the website as recommended but it was not stated that it was mandatory. It was a genuine oversight on her part. She did not realise it was something she had to do before lodging the application. She thought she could apply for the visa and later submit the police check. The applicant said that she did respond in the online application that she had not applied for the Australian Federal Police check. She said ‘no’ in answer to the question.

12. The Tribunal also discussed with the applicant that there was no discretion in relation to the requirement at issue, and its concern that regardless of understanding why she may not have complied with the requirement, there was no discretion that could be exercised taking into account her circumstances.

13. The applicant said that it would be good if the website and the application form was clearer. There was another form, a Form 80, that was not stated on the website but was referred to in the application form. As discussed with the applicant at hearing, the Tribunal is independent from the Department and the visa application process and that feedback can be passed on to the Department regarding the visa application process.

14. Based on the evidence, the Tribunal must find that the applicant did not apply for an Australian Federal Police check during the 12 months immediately before the day on which her visa application was made. Although she did apply for and obtain an Australian Federal Police check dated 30 August 2018, this was not done in the 12 months before 8 August 2018, as required by cl.485.213.

15. The plain wording of cl.485.213 specifies that the applicant’s visa application must, when it was made, have been accompanied by evidence that she had applied for an Australian Federal Police check during the 12 months immediately before the date on which the visa application was made.

16. 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 the reasons the applicant may have had for not applying for it in the specified period. The applicable law does not give the Tribunal any power to waive or overlook the need to meet cl.485.213.

17. 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 must be affirmed.

    DECISION

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

    Susan Trotter
    Member