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

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Application for Australian Federal Police check made during 12 months before visa application – Potential grounds for Ministerial intervention

LEGISLATION
Migration Act 1958, ss 65, 351

Migration Regulations 1994, Schedule 2, cl 485.213, cl 485.216, cl 485.223, cl 487.21, cl 487.216

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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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 AFP check before she made her visa application. The applicant indicated that a migration agent had assisted her in the past to obtain a student visa, but she had made the subclass 485 visa herself, without the assistance of an agent. As she had studied teaching in Australia and had obtained a working with children check to do classroom placements, she assumed that this was all that was required by the Department, or that if anything further was required, she would be asked to provide it by the Department after she lodged her visa application. She was therefore shocked and dismayed when her visa was refused because she had not already applied for an AFP check.  The applicant noted that she had now done so and it showed that she had no criminal record, which was always the case.

8. The applicant told the Tribunal that she had now been in Australia for approximately 8 years and wanted to stay. She had applied for the subclass 485 visa so that she could gain employment experience as a teacher, as she had completed her Master of Teaching in Primary Education in late 2016 and was keen to gain experience in this field. Without a substantive visa, it was very difficult to do so.  The applicant provided the Tribunal with a copy of her letter of completion dated 25 August 2017 from Monash University indicating that she completed a Master of Teaching in Primary Education there between 2 March 2015 and 8 December 2016 as a full time student, and that the course was conducted in English.

9. The Tribunal indicated that its preliminary view was that an AFP check obtained after lodgment of the subclass 485 visa would not meet cl.485.213, even if the applicant was unaware of the significance of this requirement from the online application process, which allowed her to answer ‘no’ to that question yet continue to complete and lodge the online visa application.

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 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.

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

14. 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.

15. 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.

16. 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.

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 is not satisfied that the applicant’s circumstances fall within the examples contemplated by Anand’s case, given that she did not provide a police check to the Department, but subsequently provided one to the Tribunal.  The Tribunal could not regard this as ‘accompanying the application.’

20. The Tribunal has had regard to another more recent case, Nguyen v Minister for Immigration & Anor [2016] FCCA 1523, in which Burchardt J held that the words ‘accompanied by’ in the context of a subclass 485 visa application are ‘imperative’ and suggest that there must be ‘a very close temporal connection’ between the time that the application is lodged and when the evidence which must accompany that application must be provided. In that case, Burchardt J held that a 29 day gap was too great. The Tribunal further notes that in that case, Burchardt J was considering cl.485.223, not cl.485.213. However, cl.485.223 also provides that at the time the visa application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills from the relevant assessing authority, which is essentially the same wording as that used in cl.485.213.

21. The Tribunal acknowledges that the applicant provided to the Tribunal an AFP check issued to her on 25 April 2017, but as she conceded, this was applied for and obtained after she lodged her visa application on 1 March 2017.  She had not applied for the AFP check during the 12 months immediately before 1 March 2017.

22. Accordingly, 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 she did not do so. She therefore cannot be granted a subclass 485 visa.

23. The Tribunal acknowledges that the applicant failed to appreciate that she was required to apply for the AFP check in the 12 months before making her visa application, and it acknowledges that the results of her subsequent AFP check on 25 April 2017 indicate that the applicant has no Australian criminal history. The Tribunal further accepts that the applicant is dismayed that such a seemingly technical oversight could derail her subclass 485 visa application, particularly since she provided an AFP police check which shows she has no criminal record in Australia. 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 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 (for instance, because of the applicant’s compassionate or compelling circumstances). The Tribunal must find that the applicant does not meet cl.485.213.

24. The Tribunal notes that it is open to the applicant to request the Minister to intervene in her case pursuant to s.351 of the Act, if she believes that the case meets the guidelines for Ministerial intervention set out on the Department’s website or otherwise raises unique or exceptional circumstances.

25. 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

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

    Alison Mercer
    Member