Pham (Migration)

[2019] AATA 308

Pham (Migration) [2019] AATA 308 (11 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thanh Thien Trang Pham

CASE NUMBER:  1834525

DIBP REFERENCE(S):  BCC2018/2932751

MEMBER:Jennifer Cripps Watts

DATE:11 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 February 2019 at 8:35am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – character requirements – no AFP check at time of application – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA Schedule 2 cls 485.213, 485.216

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 (the delegate) 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 5 August 2018. The criteria for a Skilled (Provisional) (Class VC) visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. The applicant’s visa was refused on 16 November 2018.  She lodged her review application with the Tribunal on 23 November 2018, within time, and provided the Tribunal with a copy of the delegate’s decision to refuse the visa.

4. To meet cl.485.213 of Schedule 2 to the Regulations, the visa application must be accompanied by evidence that each applicant and each person included in the application who is at least 16 has applied for an Australian Federal Police check. This was explained to the applicant at the beginning of the hearing.

5. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: r.2.03AA(1). In this case, cl.485.216(1) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in r.2.03AA(2).

6. In addition to the requirement that the applicant must have applied for the Australian Federal Police check before the visa application was lodged, r.2.03AA(2)(a) requires that, if requested, the applicant has provided a statement (however described) from a relevant authority in a country where the person resides or has resided that provides evidence about whether or not the person has a criminal history. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal may waive the requirement in r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

7. The delegate refused to grant the visa on 16 November 2018 on the basis that the applicant, although indicating she had applied for an Australian Federal Police check before lodging the visa application, did not meet r.2.03AA because she did not, when it was requested, provide a statement from a relevant authority: a Complete Disclosure Australian Federal Police National Police Certificate (AFP Check).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. An application for a Subclass 485 visa must contain evidence that the applicant and each person included who is at least 16 has applied for an AFP Check during the 12 months immediately before the day the visa application is made.

10. To satisfy r.2.03AA relating to character requirements, the Minister may request that an applicant provide a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal. The applicant indicated in her application that she had applied for the AFP Check and the delegate requested of the applicant that she provide a statement from an appropriate authority, described as an AFP Check.

11. The issue in this case is, essentially, whether the applicant applied for an AFP Check before she lodged her visa application. 

12. The Tribunal has had regard to the documentary evidence provided by the applicant on the Department and Tribunal files and also the oral evidence given by the applicant at the Tribunal hearing.

    Has the applicant provided a statement from an appropriate authority?

13. The applicant applied for the Subclass 485 visa that is the subject of this review on 5 August 2018.  In her visa application, the following question and answer appear:

    ‘Q:Have you and all persons included in this application who are 16 years of age or over, applied in the last 12 months to the Australian Federal Police for a check of criminal records?

    A:       Yes.’

14. A National Police Certificate issued by New South Wales Police on 19 July 2018 accompanied her visa application.   The applicant said at the hearing that she realised at a later time that she had not applied for an AFP Check, but had applied for a police check through the New South Wales Police.  She said this is because when she applied for it, she did not realise she was on the New South Wales, and not the AFP, website, because they looked almost identical.  The Tribunal accepts that the applicant did not intentionally give incorrect information when answering the question above and that, in the applicant’s words, it was a ‘careless mistake’.

15. The applicant’s visa application was assessed on 7 September 2018 and, on the same date, a letter was sent to the applicant requesting evidence of the AFP Check.  A ‘Request Detail’ document and checklist of the information being requested was attached.  Specifically, in the ‘Request Detail’ document, it is stated that an ‘Australian Federal Police (AFP) National Police Check’ is required and that it needs to be a ‘Complete Disclosure AFP National Police Certificate’.  A weblink is provided and, in the alternative, a phone number is provided for applicants who do not have internet access.  The applicant was also informed in the attached ‘Request Detail’ document that if she is unable to obtain a ‘Complete Disclosure AFP National Police Certificate’, she should demonstrate, with documentary evidence if possible, that she has made a genuine attempt to obtain it.  It is also included in the document that if the applicant does not provide the ‘Complete Disclosure AFP National Police Certificate’ the application may be refused.  In response, the applicant again provided the New South Wales Police check. 

16. An email was sent to the applicant on 21 September 2018 informing her that the police clearance she provided was not suitable for immigration purposes and the applicant was referred to the 7 September 2018 letter containing relevant information about the AFP Check and informing her that the ‘correct’ certificate should be provided by 5 October 2018.  In response, the applicant again provided the New South Wales National Police check.

17. On 16 November 2018, the visa was refused because a statement by an appropriate authority, described as an AFP Check, had been requested and not provided.

18. The applicant has now provided the Tribunal with the correct AFP Check, dated 23 November 2018.  The applicant confirmed that she had applied for this AFP Check after the visa was refused.

19. The Tribunal has had regard to the applicant’s documentary and oral evidence, including a statutory declaration, sworn by her on 31 January 2019. She gives a summary of the time she has spent in Australia and explains why she provided the New South Wales and not the Australian Federal Police check. She gave consistent oral evidence about this at the Tribunal hearing. The Tribunal has considered the explanation, however, the applicant had not applied for the AFP Check when she lodged her visa application, as required to meet cl.485.213. When the AFP Check was requested by the delegate, the applicant did not provide a statement from an appropriate authority (however described) and therefore does not meet r.2.03AA(2)(a). On the evidence, it was the New South Wales Police check, not the AFP Check, she had applied for in the 12 months immediately before the day she made the visa application. The Tribunal finds that the applicant had not applied for an AFP Check at the time of application as required under cl.485.213 of Schedule 2 to the Regulations.

    Conclusion

20. On the basis of the above findings, the applicant does not meet cl.485.213.

21. 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

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

    Jennifer Cripps Watts
    Member