Ong (Migration)

[2020] AATA 2772

Ong (Migration) [2020] AATA 2772 (26 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Lay Sian Ong

CASE NUMBER:  1926930

HOME AFFAIRS REFERENCE(S):          BCC2019/3726798

MEMBER:Cathrine Burnett-Wake

DATE:26 June 2020

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 June 2020 at 1:34pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – AFP clearance not applied for or provided to department – applicant departed Australia – response to hearing invitation, but no response to phone calls on day of hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 362B, 379A(5)

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 on 6 September 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 27 July 2019. 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 the applicant did not apply for the required Australian Federal Police clearance during the 12 months immediately before the day, they lodged their visa application.

4. On 9 June 2020 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments via a telephone hearing as part of a multiple applicant hearing listing on 24 June 2020 and that they should make themselves available for the 3-hour period between 10:00am through to 1:00PM. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

5. On 16 June 2020 the applicant advised the Tribunal that they wanted to give oral evidence. They further advised that they had departed Australia and requested the hearing time be changed to 8:30am (GMT +10) or another date as they were required to work from 11am (GMT +10) onwards and understood that the hearing was likely to go beyond an hour.

6. On 18 June 2020, the Tribunal responded to the applicant and outlined that the request to change the date and time of the hearing was noted. The Tribunal advised the applicant that it had decided not to postpone the hearing as it was possible to place their matter first on the hearings list and that the Tribunal will therefore hear the matter on 24 June 2020 at 10.00am EST and the hearing will be approximately 15 – 20 minutes in duration.

7. At 10:14AM on 24 June 2020, the Tribunal received an email from the applicant which stated:

   I'm expecting a call from AAT for my hearing with regards to a review decision for refusal to grant a Temporary Graduate (Subclass 485) visa. Fourteen minutes had passed but I did not receive any call.

   In the hearing invitation letter, it states that an officer will contact me close to the hearing time to ensure the phone connection is working. I was ready by 9:30am but I did not get any calls either.

8. However, the applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with: s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing. Further to this, the Tribunal attempted to call the applicant 6 times on the day of the scheduled hearing on the contact number provided by the applicant. The first attempted call was at 09:21AM and the last was 1:13PM. The Tribunal is therefore satisfied that it made a reasonable attempt to contact the applicant for the hearing, and notwithstanding the email stating they had not received any calls, the Tribunal is satisfied that 6 calls were made to the correct number in an attempt to conduct the hearing.

9. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made.

    Evidence relating to police checks

12. 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.

13. The applicant lodged the visa application with the Department on 27 July 2019.

14. The Tribunal notes the submission provided by the applicant on 25 September 2019 as part of the review application. This submission relevantly states:

    It is with deepest regret that I failed to provide an(sic) evidence of my police check. On 27^th July 2019, I applied for a Temporary Graduate Post-Study Work visa (subclass 485). Due to my carelessness, I did not apply to the Australian Federal Police (AFP) for a check of criminal records before applying for the visa, as I thought it was not mandatory.

15. In the written submissions from the applicant to the Tribunal, it is conceded that the Australian Federal Police check was not applied for prior to the date the visa application was made.

16. Therefore, the applicant does not satisfy cl.485.213.

17. 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

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

    Cathrine Burnett-Wake
    Member