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

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).
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.
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.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Nguyen (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] AATA 26
Decision Date: 11 January 2018

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for a Temporary Graduate visa (subclass 485) against the Tribunal's decision to affirm the refusal of his application. The applicant had completed tertiary education in Australia and sought to rely on the Post Study Work stream of the visa.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 485.213 of the Migration Regulations 1994. This clause mandates that a visa application must be accompanied by evidence that the applicant, and any accompanying persons aged 16 or over, had applied for an Australian Federal Police (AFP) check within the 12 months immediately preceding the date of application.

The Tribunal found that the applicant lodged his visa application on 6 March 2017, answering "no" to having applied for an AFP check in the preceding 12 months and providing no documentary evidence of such an application. While the applicant applied for an AFP check on 7 March 2017 and received clearance on 9 March 2017, these actions occurred after the visa application was lodged. The Tribunal accepted the applicant's submission that the online application process was misleading and that his failure to provide the AFP check evidence at the time of lodgment was an inadvertent misunderstanding. However, applying the plain wording of clause 485.213 and referencing the reasoning in *Panchal v Minister for Immigration* [2012] FMCA 562, the Tribunal concluded that the requirement for the application to be "accompanied by evidence" was not met.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa, as he failed to satisfy the mandatory criteria for the subclass 485 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence 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:485.213When 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. 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. 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. 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. 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. 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).

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.