Nguyen (Migration)

[2018] AATA 26

Nguyen (Migration) [2018] AATA 26 (11 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Quoc Khanh Nguyen

CASE NUMBER:  1709570

DIBP REFERENCE(S):  BCC2017/874672

MEMBER:Alison Mercer

DATE:11 January 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 11 January 2018 at 2:38pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post Study Work stream – Completed tertiary education in Australia – Public interest test considered – Applicant mislead by the online visa application process – No current Australian police check documentation when submitting application – Applied one day after of police check clearance

LEGISLATION

Migration Act 1958, ss 48, 65, 351, 360(2)
Migration Regulations 1994, Schedule 2 cls 485.213, 485.215, 487.216, 485.231, 487.21, 487.216

CASES

Anand v Minister for Immigration and Citizenship [2013] FCA 1050
Panchal v Minister for Immigration [2012] FMCA 562

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 on 18 April 2017 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 6 March 2017. 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, which require that when the application was made, it was accompanied by evidence that the applicant had applied for an Australian Federal Police (AFP) check in the 12 months immediately before the date on which the visa application was lodged. The delegate noted that the applicant answered ‘no’ in the online visa application to the question of whether he had already applied for an AFP check.

4. The Tribunal received a review application from the applicant on 2 May 2017, which was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Ms Solina Sam, as his representative and authorised recipient for correspondence.

5. On 7 August 2017, the Tribunal wrote to the applicant via his agent to invite him to a hearing on 31 August 2017. He was requested to indicate whether he would attend the hearing, and to provide any additional submissions and/or documents to the Tribunal 1 week prior to the hearing.

6. On 14 August 2017, the applicant’s agent provided a copy of a receipt issued to the applicant by the AFP on 7 March 2017 and an AFP clearance issued to the applicant on 9 March 2017 indicating that there are no disclosable outcomes recorded against his name, a copy of his Bachelor of Marketing degree from Monash University, a copy of the results of an English language test he undertook on 11 February 2017, evidence of his health insurance cover and a copy of the applicant’s Vietnamese police clearance. 

7. The applicant’s agent also provided a written submission in which she made the following points (in summary):

   ·    the facts of the case were not in dispute and therefore, the applicant and his agent saw no need for a hearing, as the issue was a legal one;

   ·    the applicant had originally come to Australia in 2012 as the holder of a subclass 573 (Higher Education Sector) student visa and completed his year 12 certificate followed by a Bachelor of Business Marketing at Monash University on 1 March 2016 [sic – 2017];

   ·    shortly after completing his Bachelor degree, the applicant applied for the subclass 485 visa in the Post Study Work stream, on 6 March 2017. He was entitled to the visa and should have received it, but it was refused by the delegate because the applicant failed to satisfy cl.485.213;

   ·    the applicant completed the online visa application himself without assistance, and truthfully answered ‘no’ to the question of whether he had applied for an AFP check before making the online visa application. However, he did so the following day and uploaded the AFP receipt to his online immigration account on 7 March 2017;

   ·    it was submitted that, apart from cl.485.213, the applicant met all the Post Study Work stream criteria for a subclass 485 visa, including having demonstrated the required English proficiency in a test he undertook before making his visa application, the evidence of which was uploaded with his online visa application. Moreover, he had adequate health cover which he intended to maintain, as required by cl.485.215 and met the Australian study requirement within 6 months of making his visa application, as required by cl.485.231;

   ·    although the applicant uploaded proof that he had applied for an AFP check on 7 March 2017, the delegate took a literal, narrow view of cl.485.213 in finding that it did not ‘accompany the application when it was made;’

   ·    in legislative interpretation, the interpretation that would achieve the purpose or object of the legislation should be preferred to another interpretation.  Part of the purpose of the Migration Act 1958 was to regulate the grant of visas, and that the requirement in cl.485.213 was to ensure that by the time a decision was made on a visa application, it was clear whether an applicant passed the character test or not. The current global processing time for a subclass 485 visa was 4 months, so a literal approach to cl.485.213 (that is, requiring evidence of having already applied for an AFP check on the day the visa application) was made was absurd, and inconsistent with the intention of the Regulations and underlying Act;

   ·    it had been accepted by the Federal Court in Anand v Minister for Immigration and Citizenship [2013] FCA 1050 that ‘evidence accompanying an application’ could be supplied after the application was lodged, so long as there was some temporal connection with the application. In that case, the Court considered cl.487.216, which had identical wording to cl.485.213 in respect of the application being accompanied by evidence that the applicant had applied for an AFP check in the immediately preceding 12 months;

   ·    in Anand, the applicant lodged his subclass 487 visa application on 9 March 2009 but did not supply evidence that he had applied for an AFP check as required by cl.487.216, and answered ‘no’ to the question in his application, even though he had in fact applied for an AFP check on 27 February 2009;

   ·    Katzmann J held that the intention of cl.487.216 was to ensure that an application was not processed unless it met certain criteria, but that it was not necessarily inconsistent with the application being ‘accompanied by [such] evidence’ that evidence was submitted after the application was lodged. Katzmann J observed that how long after was another question, and expressed the view that there had to be a temporal connection (for instance, evidence provided within a day or 2 of the application being made might be held to accompany the application but evidence provided 5 months afterwards would not);

   ·    consistent with the above reasoning, it was submitted that the applicant met cl.485.213 by virtue of the fact that he uploaded evidence that he had applied for an AFP check the day after he lodged the subclass 485 visa application;

   · the Tribunal was urged to remit the matter on this basis; alternatively, if the Tribunal did not agree with this legal analysis, it was requested to refer the matter to the Minister for consideration of his powers under s.351 of the Act to substitute a more favourable decision in the event of an unsuccessful Tribunal outcome;

   ·    the following public interest reasons were identified: firstly, the fact that the online subclass 485 visa application process permitted the applicant to proceed with the application to the point of lodgment, despite him answering ‘no’ to a question which meant his application must fail. The applicant’s agent acknowledged that there was a general warning at the beginning of the online application process to the effect that applicants must have already taken steps to meet certain requirements and obtain documentation before lodging the application, and if the requirements below were not met, they might not be able to lodge, or be granted, a visa. However, she noted that the system nevertheless allowed the applicant to continue in circumstances where it was futile to do so. This was a defect in the online system which misled him into thinking that he could apply for and upload his AFP check after lodging the visa application;

   ·    the Department ‘held out’ to subclass 485 visa applicants that they were able to make the visa application themselves without the assistance of a migration agent or lawyer through the online process by creating an Immi account. Yet applicants were misled by the online application process itself due to its failure to clearly warn them that answering ‘no’ to the AFP check question would result in their applications being refused;

   · as a result of this, the applicant (and others) was unaware of the significance of this requirement, and due to inadvertence and being misled, had paid a high price by having his visa refused and now being s.48 barred from making a further visa application in Australia;

   ·    education for international students was Australia’s third largest export, with export earnings in 2016 reaching a record $21.8 billion. The Department’s encouragement to these students to make their own visa applications online should be properly backed up by an accurate online system, and not one that misled them; and

   ·    the Tribunal was asked again to refer the matter to the Minister on the basis that the applicant had been severely prejudiced in this matter and would otherwise have been entitled to the grant of the visa for which he had applied.

8. A copy of the judgment in Anand’s case was also provided.

9. The Tribunal did not consider a hearing to be necessary in this case, as it considered that the applicant had waived his right to a hearing and it was therefore not required (or indeed able) to invite him to a hearing, pursuant to s.360(2) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Evidence relating to police checks

11. 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:

    485.213

    When the application was made, it was accompanied by evidence that:

    (a)  the applicant; and

    (b)  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.

12. Based on the available evidence, the Tribunal makes the following findings:

    ·the applicant lodged a  subclass 485 visa application online on 6 March 2017;

    ·in this application, he answered 'no' to the question of whether he had applied for an AFP check in the preceding 12 months and he did not provide any documentary evidence that he had done so;

    ·the applicant applied for an AFP check on 7 March 2017 and uploaded a receipt evidencing this to his Immi account online on the same date;

    ·the applicant was issued with an AFP check on 9 March 2017 which indicates that he has no criminal record in Australia; and

    ·the applicant provided the above AFP check to the Tribunal on 14 August 2017.

13. 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 he had applied for an AFP check during the 12 months immediately before the date on which the visa application was made. 

14. The applicant has acknowledged that he did not apply for an AFP check during the 12 months immediately before he made his visa application on 6 March 2017, and has indicated that it was not clear to him from completing the online visa application that this was a mandatory requirement. The Tribunal accepts that this was an inadvertent misunderstanding on his part.  The Tribunal further accepts that the applicant did apply for an AFP check on 7 March 2017, and both he and the Department agree that he provided evidence of this to the Department on 7 March 2017 by uploading the AFP receipt of the same date to his online Immi account.

15. Based on the agreed facts, the Tribunal must find that the applicant did not apply for an AFP check during the 12 months immediately before the day on which his visa application was made.  Although he did apply for and obtain an AFP check between 7 and 9 March 2017, this was not done in the 12 months before 6 March 2017, as required by cl.485.213. 

16. The Tribunal has regard to the case of Panchal v Minister for Immigration [2012] FMCA 562, in which Scarlett FM considered the phrase ‘accompanied by evidence’ in relation to cl.485.216 (identically worded to cl.485.213), and concluded that the phrase ‘… clearly refers to something other than that which is contained in the online application form’ (at [84]). As noted above, it was not disputed that the applicant did not provide an AFP receipt or check with his visa application (although he provided evidence of the receipt the day after lodgment of the visa application).

17. The Tribunal has also had had regard to the case of Anand v Minister for Immigration and Citizenship [2013] FCA 1050, in which Katzmann J considered an identically worded clause (cl.487.216) and held that:

    It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria.  That is why relevant evidence is to accompany the application.  Consistent with that purpose the evidence should be submitted with or at the same time as the application.  Yet, it is not necessarily inconsistent with that purpose that the evidence is submitted after the visa application is lodged, although how long after is another question… For the above reasons, I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged.  Evidence supplied around the time of the application may be sufficient. I doubt, for example, if accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application. It might even extend beyond that.  Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within a week, and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged…

18. The Tribunal notes that Anand’s case dealt with an arguably more flexible formulation of the requirement, as the ‘time of application’ requirement in that case came under the cl.487.21 heading and was not contained in the cl.487.216 criterion itself.  While the heading informs the criterion, it is not determinative.  However, in the form of the criterion that applies to this case, the criterion itself specifies that ‘when the application was made’ it ‘was accompanied by’ the specified evidence’ and the expressions ‘had applied’ and ‘had made the arrangements’ (contrasted to ‘has applied’ or ‘has made the arrangements’) locate the substantive content clearly in the past.

19. The Tribunal further notes the submissions by the applicant’s agent that the observations made by Katzmann J in Anand’s case should allow for an AFP check receipt provided the day after the online visa application was made (as in this case) to be regarded as having ‘accompanied’ the application, given the close temporal connection between the 2 events.

20. The Tribunal acknowledges that the applicant provided to the Tribunal a receipt for an AFP check issued to him on 7 March 2017, but as he conceded, this was applied for and obtained after he lodged his visa application on 6 March 2017.  He had not applied for the AFP check during the 12 months immediately before 6 March 2017. This is the crucial issue in the Tribunal’s view, given the requirement in cl.485.213 that what ‘accompanied’ the application was evidence that the applicant had applied for an AFP check in the 12 months immediately before he made the visa application [Tribunal’s emphasis].  It is this specific temporal requirement contained in cl.485.213 that is not met, regardless of whether the Tribunal were to accept that evidence lodged 1 day after the visa application was made ‘accompanied’ the application. In contrast, and as noted by the applicant’s agent, the applicant in Anand’s case had in fact applied for an AFP check before lodging his visa application but had not provided the evidence that he had done so until after he lodged the visa application.

21. The Tribunal finds that to be successful, the applicant must meet cl.485.213 in the way that that provision sets out, and it further finds that he did not do so.  He therefore cannot be granted a subclass 485 visa.

22. The Tribunal acknowledges that the applicant failed to appreciate that he was required to apply for the AFP check in the 12 months before making his visa application. The Tribunal further accepts that the applicant is dismayed that such a seemingly technical oversight could derail his subclass 485 visa application, particularly since he obtained an AFP police check which shows he has no criminal record in Australia very shortly after making his visa application. However, 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 and obtaining it in the specified period) as it is bound to apply the law as it is written. The applicable law does not give the Tribunal any power to waive or overlook the need to meet cl.485.213. 

23. The Tribunal notes that the applicant and his agent have requested the Tribunal to refer this matter to the Minister to intervene in the applicant’s case pursuant to s.351 of the Act, in the event that the Tribunal is unable to find that the applicant meets cl.485.213. As noted above, the applicant and his agent raised with the Tribunal their concerns about the fact that the online subclass 485 visa application system did not, at the time of the applicant’s application, clearly indicate that failure to have applied for an AFP clearance before lodging the application would mean that an applicant could not be granted the visa (even if he or she subsequently provided one and met all the other visa criteria). While the Tribunal notes that the online application made by the applicant contains a general introductory statement that failure to meet certain criteria at the time of the application might result in the application being refused, it is satisfied that it was still possible to answer ‘no’ to the AFP check question without receiving any indication or warning to applicants that proceeding to complete and lodge the visa application was futile under these circumstances as it would have to be refused.

1. The Tribunal notes that s.351 of the Act gives the Minister a personal, non-compellable power to replace a decision of the Tribunal with a decision that is more favourable to the applicant if the Minister thinks that it is in the public interest to do so. Guidelines on the types of unique or exceptional circumstances in which a case might be referred to the Minister for consideration are set out on the Department’s website, as are guidelines on cases which it is considered that it would be inappropriate for the Minister to consider intervening: >

   The guidelines on unique or exceptional circumstances include compassionate circumstances regarding an applicant’s health that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship, exceptional economic, scientific, cultural or other benefit that would result from an applicant being permitted to remain in Australia, and circumstances not anticipated by the relevant legislation, or clearly unintended consequences of the legislation, or where the application of the relevant legislation leads to an unfair or unreasonable results in the case of a particular outcome.

2. While the Tribunal acknowledges that the applicant has professional qualifications in Marketing from Australia, it is not persuaded that this constitutes an exceptional economic, scientific, cultural or other benefit to Australia in the absence of any other distinguishing achievements. Moreover, the Tribunal considers that the legislation in this area, including cl.485.213, is clear and its consequences cannot be said to be unintended. The Tribunal does, however, agree that the discrepancy identified by the applicant (and by other applicants before the Tribunal in previous cases) between the strict and prescriptive wording of cl.485.213 and the more generalised information in the online application form and the Department's website about the AFP check that was in place at the time that the applicant made his visa application, have led to unfair or unreasonable results in the applicant's case, in that his application has failed due to a relatively minor legal error in circumstances where it is clear that he has at all times had a clear criminal record in Australia and it appears that he would otherwise have met all the requirements for the grant of the subclass 485 visa. 

3. However, the Tribunal considers that these grounds are not in and of themselves sufficiently compelling, in the absence of any other distinguishing factors, to refer the matter for Ministerial intervention but notes that it remains open to the applicant and his agent to raise these, and any other documentary evidence that they consider relevant, in seeking Ministerial intervention directly.

4. For the reasons above, the Tribunal must find 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

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

   Alison Mercer
   Member