SHARMA (Migration)

[2019] AATA 6397

SHARMA (Migration) [2019] AATA 6397 (4 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr KRITAGYA SHARMA

CASE NUMBER:  1911245

DIBP REFERENCE(S):  BCC2019/375148

MEMBER:Jennifer Cripps Watts

DATE:4 December 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 04 December 2019 at 1:06pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – character test – statement from an appropriate authority – Australian Federal Police (AFP) Complete Disclosure clearance (AFP Check) – NSW National Police Certificate – AFP Standard Disclosure clearance – validity of cl 485.213 – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 55, 65, 349, 504
Migration Regulations 1994 (Cth), r 2.03AA; 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 Immigration 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 7 February 2019. 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 delegate refused to grant the visa on 11 June 2019 on the basis that the applicant did not meet r.2.03AA because when the delegate requested that the applicant provide an Australian Federal Police (AFP) Complete Disclosure clearance (AFP Check), the applicant provided an NSW National Police Certificate and an AFP Standard Disclosure clearance.

4. However, having reviewed the Department and Tribunal files, the determinative issue, in the view of the Tribunal, given the facts and circumstances in this case, is whether the applicant met cl.485.213 at the time of application which requires, essentially, that the applicant has applied for an AFP Check during the 12 months immediately before the day the visa application is made.  The applicant was put on notice of this at the hearing and it was explained to him.

5. On 4 May 2019 the applicant applied for review of the decision and provided the Tribunal with a copy of the delegate’s decision to refuse the visa. On 21 October 2019, the Tribunal sent the applicant to a hearing scheduled on 26 November 2019. In the invitation, the applicant was requested by the Tribunal to provide evidence of having applied for the AFP Check within the 12 month period before he applied for the visa.

6. The applicant appeared before the Tribunal on 26 November 2019 to give evidence and present arguments. The applicant did not request the use of an interpreter at the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant applied for a Subclass 485 visa in the Post Study Work stream – the primary criteria that must be met are cl.485.21 and 485.23.

9. All primary criteria must be satisfied at the time a decision is made on the application, unless otherwise stated.

10. The visa was refused by the delegate because the applicant did not satisfy cl.485.216. However, the Tribunal considers the issue to be whether the applicant meets cl.485.213.  This is because, even if the applicant provides an AFP Check, relevantly at the time of application or to Tribunal (to meet cl.485.216), to meet cl.485.213 it must have been applied for in the 12 months immediately before the day the application was made.  He was informed, both in the hearing invitation and at the beginning of the hearing, that the Tribunal was considering whether he meets cl.485.213.

11. The applicant applied for the visa on 7 February 2019. In the online application form, the applicant answered ‘Yes’ in response to the question ‘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?’ and provided the reference number 1325198 in his online application as evidence of having applied for the police check. On 8 February, the applicant provided a receipt dated 7 February 2019 from National Police Checking Service that had a document ID that matched the reference number provided on the online application form. On 15 February, the applicant provided a NSW National Police Certificate dated 9 February 2019.

12. On 1 May 2019, the application was assessed and the Department requested in writing that the applicant provide within 28 days an AFP Check, and included with the request detailed information about how to obtain one. On 8 April 2019, the applicant provided an AFP Standard Disclosure clearance issued on 1 April 2019, which was not the document that was described in the request from the Department.

13. The delegate considered the evidence and whether it was not reasonable for the applicant to provide the AFP Check.  The delegate decided that the wrong police check had been provided, it was not reasonable for the applicant not to provide a police check, and that the applicant did not therefore satisfy r.2.03AA(2)(a) and that r.2.03AA(3) did not apply.

14. On 4 May 2019 the applicant applied for merits review and provided the Tribunal with a copy of the delegate’s decision to refuse the visa. On 9 May 2019, the Tribunal wrote to the applicant requesting the AFP Check.   On 13 May 2019, the applicant provided a receipt for an AFP Check issued on 11 May 2019.  On 20 May 2019, the applicant provided the Tribunal with an AFP Check issued on 13 May 2019 with reference number 54855459PC.  It indicates no disclosable court outcomes.  The evidence confirms that the AFP Check was not applied for before the visa application was made.

15. The applicant does not dispute that he does not meet cl.485.213.

16. The Tribunal has considered the documentary and oral evidence, including written submissions received on 19 November 2019, which included legal argument, essentially claiming that cl.485.213 is wholly invalid by reason of s.55 of the Act. In the submissions, the applicant concedes, referring to the police check he provided, that the ‘document was not the police check contemplated by the criterion 485.213’. An extract of the submissions follows:

    ‘Section 55 of the Migration Act 1958 permits the giving of further information subject to it being relevant and imposes on the Minister a requirement to consider the additional relevant information “until the Minister has made a decision”

    Thus, the requirement embodied in Reg 485.213 to the effect that  “When the application was made, it was accompanied by evidence…” is clearly inconsistent with the Act and to the extent of any inconsistency is ultra vires the Act.

    The relevant temporal constraint imported by the regulation, namely “When the application was made, it was accompanied by evidence..”; falls away because it purports to impose a temporal requirement, namely “must accompany” the Application and “when the Application was made” purports to do the same thing.

    Given that section 55 has a temporal constraint “until the minister has made a decision” anything else in the regulations, that is expressed to import an additional requirement is at odds with Section 55 and thus traverses section 504 of the Act.

    Further the decision made by Justice Katzmann sitting as the Full Federal Court on an appeal from the FCC and the AAT should be followed.

    In the alternative, the applicant submits that the regulation, to the extent of its invalidity should be read down and that given the AAT exercises its powers De Novo, the reception of a police clearance certificate in proper form requires the Tribunal to exercise the same powers as the Minister and is subject to section 55 of the Migration Act 1958.’

17. Section s 349 of the Act bestows on the Tribunal all the powers and discretions that are conferred by this Act on the person who made the decision.

18. Section 504  of the Act provides that ‘the Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Actions…’

19. The Tribunal has considered the applicant’s legal position and the submissions and whether cl.485.213 and s.55 are inconsistent as described by s.504. It is the considered view of the Tribunal that the temporal requirement in cl.485.213 is not inconsistent with s.55 of the Act. With respect to the submission that cl.485.213 is wholly invalid, the Tribunal’s view is that it is the jurisdiction of the Courts, and not the Tribunal, to determine whether a legislative provision is valid.

20. The applicant applied for the Subclass 485 visa that is the subject of this review on 7 February 2019.  There is no evidence before the Tribunal that he had applied for an AFP Check in the 12 months immediately before the day the application was made.

21. Accordingly, on the basis of the above findings, he does not meet the requirements of cl.485.213.

    DECISION

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

    Jennifer Cripps Watts
    Member