Mutangiri (Migration)

[2019] AATA 5588

Mutangiri (Migration) [2019] AATA 5588 (11 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Precious Mutangiri

CASE NUMBER:  1912764

HOME AFFAIRS REFERENCE(S):          BCC2019/1165576

MEMBER:Jennifer Cripps Watts

DATE:11 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 December 2019 at 1:49pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police check  – not accompanied by required evidence  – applied for AFP check after application lodgement – no disclosable outcomes – certified chemical engineer working in a remote regional mine – request for Ministerial referral declined – 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 (the delegate) on 7 May 2019 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 7 March 2019. 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 because the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations because when the application was made, it was not accompanied by evidence that the applicant had applied for an Australian Federal Police check (AFP check) during the 12 months immediately before the day the application was made.

4. The applicant applied to the Tribunal for merits review and provided a copy of the delegate’s decision with the review application.  On 21 October 2019, the Tribunal sent the applicant an invitation to attend a hearing scheduled on 11 December 2019.

5. The applicant appeared before the Tribunal on 11 December 2019 to give evidence and present arguments.  

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 of Schedule 2 to the Regulations, the same substantive issue on which the visa was refused.

   Evidence relating to police checks

8. It was explained to the applicant at the Tribunal hearing that to be granted a Subclass 485 visa an applicant must meet all the primary criteria including, relevantly, cl.485.213 which requires that when the application was made it was accompanied by evidence that the applicant had applied for an AFP Check during the 12 months immediately before the day the visa application was made.  This can be in the form of a receipt or reference number and there is an opportunity to provide this information in the online application form.

9. An applicant is not required to provide an AFP Check with the visa application, but evidence that they have applied for an AFP Check needs to accompany the application and is required for them to meet cl.485.213.

   The applicant’s evidence relating to the police check

10. The applicant applied for the Subclass 485 visa that is the subject of this review on 7 March 2019. 

11. In the applicant’s online application, the following question and answer appears:

    Q.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?

    A.        No.

12. The applicant provided the Tribunal with a statutory declaration sworn on 2 December 2019 in which she says, in summary, that when applying for the visa she contacted the Department because she thought her National Criminal Check (NCC) would be sufficient but was told that she needed an AFP Check and that on 8 March 2019 (the day after the visa was refused) the applicant attempted to apply for an AFP Check.  She explains that she did not receive it and applied again for an AFP Check on 8 April 2019, which she received on 7 May 2019.  The applicant has provided the Tribunal with the AFP Check which is dated 2 May 2019.  The applicant confirmed at the hearing that she applied for the AFP Check after she made the Subclass 485 visa application.

13. The applicant provided the Tribunal with written submissions from her migration agent explaining that the applicant made a genuine mistake relating to her visa application and the AFP Check that resulted in the delegate finding the applicant did not meet the requirements of cl.485.213.  The Tribunal has considered the submissions and the request that the matter be referred, by the Tribunal, to the Minister.

14. The matters raised in these documents were discussed with the applicant at the Tribunal hearing.

15. The applicant is a 29 year old national of Zimbabwe who has been studying and working in Australia towards her career goal of becoming a chemical engineer for about nine years.  She has a sister and brother who reside in Australia.  The applicant completed an Honours Degree in Chemical Engineering at the University of Newcastle on 7 December 2018.  She was positively assessed by Engineers Australia for the occupation Chemical Engineer on 4 March 2019. 

16. The applicant applied for the visa on 7 March 2019 and has provided the Tribunal with an APF Check dated 2 May 2019.  It certifies that there are no disclosable outcomes recorded against the applicant. 

17. At the hearing, the applicant gave oral evidence that since August 2019 she has been working as a contractor through Chandler and McLeod at the BHP Mount Keith mine in a remote region of Western Australia, about 800 kilometres from Perth.  She works on a week on, week off basis, and is flown in and out by the company.  The position she is currently working in is that of Production Improvement Analyst.

18. The applicant confirmed at the hearing that she knows she made a mistake in her visa application and understands she does not meet cl.485.213 because evidence did not accompany her visa application that she had applied for an AFP Check.

19. The Tribunal has sympathy for the applicant where a misunderstanding and genuine mistake on her part have led to her being refused a Subclass 485 visa.  Especially in circumstances where she has an Honours degree in Chemical Engineering from an Australian university and is an Australian certified chemical engineer working for a mine in a remote regional location at a time when Australia is actively encouraging young, qualified and skilled people to come to Australia to work, particularly in regional areas.  The refusal of the visa will leave her with limited options to remain in Australia.

20. However, for the reasons given, the application does not satisfy cl.485.213 of Schedule 2 to the Regulations and the Tribunal has no discretion to waive the criteria.

    Request for referral to the Minister

21. The Tribunal acknowledges that a request was made by the applicant to refer their matter to the Minister in the event of an unfavourable decision on the review. 

22. Under the Ministerial guidelines, the Tribunal may refer a case to the Department if the Tribunal member believes there are issues involved that fall within the unique or exceptional circumstances described in section 4 of the guidelines. The Tribunal has carefully considered the submissions and evidence with reference to the guidelines, but has decided not to make a specific recommendation of referral.  As there will be an appropriate existing decision in the applicant’s case from the Administrative Appeals Tribunal (Migration and Refugee Division), the applicant will be able to make a direct request to the Department for Ministerial intervention, and have the request assessed against the Ministerial guidelines, if she chooses to.

23. 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

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

    Jennifer Cripps Watts
    Member