Monthy (Migration) - [2018] AATA 2175

Monthy (Migration) [2018] AATA 2175 (20 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Lindy Marie-Flavienne Monthy
Miss Ishanne L.Mae-Ling Ma-Low
CASE NUMBER:  1617513
DIBP REFERENCE(S):  BCC2016/2752501
MEMBER:Bridget Cullen
DATE:20 April 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 20 April 2018 at 1:51pm
CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – subclass 485 – Australian Federal Police clearance – Applicant did not meet the “time of application” criteria – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 51A, 65, 69, 494D
Migration Regulations 1994, Schedule 2, cls 485.213, 485.311, Schedule 1
CASES
Argente v Minister for Immigration [2004] FMCA 252
Kioa v West [1985] HCA 81
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 October 2016 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 19 August 2016. 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.
The delegate refused to grant the visa because the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations as the delegate considered the applicant did not apply for the required Australian Federal Police clearance check during the 12 months immediately before the day she lodged the visa application.
The applicant appeared before the Tribunal on 11 April 2018 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent (also a solicitor), who attended the hearing and made submissions.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets cl.485.213.
Evidence relating to police checks
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.
The applicant has provided the Tribunal with an Australian Federal Police Check dated 11 October 2016, which is 5 days after the Department refused the visa application. The Police Check indicates that there are no disclosable court outcomes listed against her. The secondary applicant is the first-named applicant’s daughter, and is under the age of 16-years, and therefore does not need to provide a police check. The applicant acknowledges that she ticked “no” on her online visa application form in response to the question as to whether she had applied for an Australian Federal Police Check in the 12-month period prior to lodgment.
The applicant concedes that her applying for the police check on 11 October 2016 is not within the requisite 12 month period immediately before the visa application was lodged on 6 October 2016 (being the period 6 October 2015 to 6 October 2016), and accepts that she does not meet cl.485.213.[1]
[1] Submissions filed by the Applicant’s Representative, Page 2, 29 March 2018.
The applicant submits that the applicant’s failure to satisfy cl.485.213 should not have led to a refusal by the Department of her application; rather the Department should have proceeded to invalidate her application. The applicant says that the Department should have advised her that she did not meet the “time of application” criteria contained in cl.485.213, and then provided with a chance to satisfy the criteria by submitting evidence of an Australian Federal Police Check clearance with her application.
Procedural fairness
The applicant says that she was not afforded procedural fairness by the Department, as in refusing the application, she was denied the chance to provide her police clearance and demonstrate that she met the requirements in cl. 485.213 before the Department made a decision.
She draws the Tribunal’s attention to Kioa v West [1985] HCA 81; (1985) 159 CLR 550, and His Honour Justice Mason’s statements therein that:
“the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.”
While it may be good practice for the Department to contact the applicant, there is no legislative requirement for the Department to contact an applicant to invite them to address the fact that they failed to attach evidence of a police check. Section 51A of the Act essentially provides that the Department’s natural justice requirements are exhaustively contained in Subdivision AB, Division 3 of Part 2 (Code of procedure for dealing fairly, efficiently and quickly with visa applications).
Further, s69 of the Act provides that a failure by the Department to comply with Part 2, Division 3, Subdivisions AA or AB or s.494D does not mean that a decision to grant or refuse to grant a visa is not a valid decision. It only means that the primary decision might have been the wrong one and might be set aside upon review. In this case, the Tribunal’s role is to review the decision and ‘cure’ any defects which arose. Therefore, even if the applicant’s argument that she was denied procedural fairness was accepted, this does mean that the decision should be set aside and deemed to be an invalid application.
Was the application validly made?
In Argente v Minister for Immigration [2004] FMCA 252, Phipps, FM, considered whether the Departmental delegate had correctly determined that the applicant’s visa application was invalid. The applicant contended that the decision the application was invalid was unreasonable, did not accord him natural justice, and thus constituted jurisdictional error. The applicant applied for a Class DE Skilled Australian-Sponsored Overseas Student (Resident) Subclass 881 visa, sponsored by his Australian citizen aunt. The Schedule 1 criteria for the visa category prescribed a number of requirements which must be met at the time of application in order for the visa application to be valid.
A month after lodgement, the Departmental delegate informed the applicant that his application was invalid because: (a) it was not accompanied by evidence that during the 12 months immediately before it was made, the Australian Federal Police had completed a criminal records check of the applicant; and (b) it was not accompanied by adequate evidence of the family relationship between the applicant and his sponsor.
The applicant in Argente subsequently produced an Australian Federal Police check which was undertaken after lodgement of his application, but before the delegate’s invalidity finding. The Court commented that “the intention of the legislation is that applications are to be made with all necessary documents. An application which is not is to be treated as if it is not an application.” The Court acknowledged the practical difficulties for the applicant in providing the required evidence, but stated that unreasonableness or unfairness in the situation did not affect the decision the delegate made, and was compelled to make.
The Court held that the police check undertaken after lodgement by the applicant could not satisfy the requirement that it was done in the 12 months immediately before the application was made, notwithstanding the lack of logic of this requirement and the fact that the situation appeared to be one where form prevailed over substance. The Court found that, if Schedule 1 has a clear and unambiguous requirement which must be satisfied, then it must be satisfied.
Schedule 1 to the Regulations sets out the specific ways in which a non-citizen applies for a visa of a particular class. An application that is not made as set out in Schedule 1 is not valid, and will not be considered by the Department. This is relevant here, as the applicant suggests that the Department should have invalidated her application, and then contacted her. Then, she contends, she could have provided evidence of an AFP police check, before the Department made the decision to refuse her application.
The Tribunal considers that Argente is distinguishable from the application now under review. In Argente, the Court was considering a police check requirement which was contained in Schedule 1 and was required for the application to be valid. In this matter, the validity requirements contained in Schedule 1, Item 1229, do not require evidence of a police check for the application to be validly made. On this basis, evidence of a police check was not a part of the required documentation for the Department to accept the application as having been validly made.
Although the application was valid without the attachment of the police check, the substantive criteria for the visa are not satisfied as the Tribunal finds that the applicant did not apply for a police check within the requisite 12 month period immediately before the visa application was lodged on 9 August 2016. Therefore, the applicant does not satisfy cl.485.213.
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.
Secondary applicant
The delegate also refused a visa to the secondary applicant, the daughter of the visa applicant and who is included in his application.
There is no claim or any evidence before the Tribunal that the remaining applicant meets the primary criteria for the grant of the visa. In addition, to meet clause 485.311, the secondary applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 485 visa. As the applicant does not satisfy the primary criteria for a subclass 485 visa, or any other subclass, the Tribunal finds that the secondary applicant also does not satisfy clause 485.311 and, therefore, the criteria for a subclass 485 visa, or any other subclass.
DECISION
The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.
Bridget Cullen
Member