NOLAN (Migration) - [2017] AATA 2110

NOLAN (Migration) [2017] AATA 2110 (26 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Anna Catherine Nolan
CASE NUMBER:  1709015
DIBP REFERENCE(S):  BCC2017/815020
MEMBER:Alison Mercer
DATE:26 October 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 26 October 2017 at 5:11pm

CASES
Panchal v Minister for Immigration [2012] FMCA 562
Anand v Minister for Immigration and Citizenship [2013] FCA 1050
Nguyen v Minister for Immigration & Anor [2016] FCCA 1523
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 10 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 1 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 because she did not provide an Australian Federal Police (AFP) check. The delegate noted that the applicant answered ‘no’ to the question in her online visa application of whether she had applied for an AFP check in the 12 months before making the visa application and had not provided any evidence of having applied for one in the previous 12 months, as required by cl.485.213.
The Tribunal received a review application from the applicant on 24 April 2017, which was accompanied by a copy of the delegate’s decision and a receipt dated 23 April 2017 indicating that she had applied for an AFP check on that date. She indicated that her failure to apply for an AFP check before making her visa application was inadvertent.
On 7 August 2017, the Tribunal wrote to the applicant to invite her to attend a hearing on 31 August 2017. She was requested to provide any supporting documents and/or submissions to the Tribunal prior to the hearing.
The applicant subsequently provided an AFP check to the Tribunal that was issued to her on 25 April 2017 and that indicates that there are no disclosable court outcomes recorded against her name in Australia.
The applicant attended the hearing with the Tribunal on 31 August 2017 to give evidence and present arguments. She confirmed her earlier written statement to the effect that she had been unaware that it was mandatory for her to have applied for an…

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.

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Details

Case: [2017] AATA 2110
Decision Date: 26 October 2017

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, subclass 485, made by the applicant. The Tribunal, constituted by Alison Mercer, was required to determine whether the applicant had met the requirements of clause 485.213 of the Migration Regulations 1994.

The central legal issue was whether the applicant's visa application had been accompanied by evidence that she, and any other applicant aged 16 or over, had applied for an Australian Federal Police (AFP) check within the 12 months immediately preceding the date of the visa application. The applicant had lodged her application online on 1 March 2017, answering "no" to the question of whether she had applied for an AFP check in the preceding 12 months and providing no documentary evidence to that effect. She subsequently applied for and obtained an AFP check on 23 and 25 April 2017, respectively, which she later provided to the Tribunal.

The Tribunal reasoned that the plain wording of clause 485.213 mandated that the visa application, at the time of lodgement, must have been accompanied by evidence of an AFP check application within the preceding 12 months. While accepting the applicant's misunderstanding of this requirement was inadvertent, the Tribunal found that she had not applied for an AFP check in the relevant period. Relying on the principles established in *Panchal v Minister for Immigration* [2012] FMCA 562 and *Anand v Minister for Immigration and Citizenship* [2013] FCA 1050, the Tribunal concluded that evidence submitted five months after the application was lodged was too late to be considered as "accompanied by" the application.

Consequently, the Tribunal found that the applicant did not satisfy the criteria for the grant of a subclass 485 visa. The decision under review, which was not to grant the visa, was therefore affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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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 1 March 2017;·in this application, she answered 'no' to the question of whether she had applied for an AFP check in the preceding 12 months and she did not provide any documentary evidence that she had done so; ·the applicant applied for an AFP check on 23 April 2017 and was issued with an AFP check on 25 April 2017 which indicates that she has no criminal record in Australia; and·the applicant provided the above AFP check to the Tribunal on 13 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 she had applied for an AFP check during the 12 months immediately before the date on which the visa application was made. The applicant acknowledged that she did not apply for an AFP check during the 12 months immediately before she made her visa application on 1 March 2017, and indicated that it was not clear to her from completing the online visa application that this was a mandatory requirement. The Tribunal accepts that this was an inadvertent misunderstanding on her part. The Tribunal therefore finds that the applicant did not apply for an AFP check during the 12 months immediately before the day on which her visa application was made. Although she did apply for and obtain an AFP check between 23 and 25 April 2017, this was not done in the 12 months before 1 March 2017, as required by cl.485.213. For the same reasons, the Tribunal finds that the visa application was not accompanied by evidence that the applicant had applied for an AFP check in the relevant period. 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 check with her visa application. 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…

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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