Tang (Migration)

[2018] AATA 5281

Tang (Migration) [2018] AATA 5281 (21 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gangsong Tang

CASE NUMBER:  1818085

HOME AFFAIRS REFERENCE(S):           BCC2018/1209327

MEMBER:Wan Shum

DATE:21 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 21 November 2018 at 11:37am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian Federal Police check – 12 months immediately before visa application – obtained National Police Certificate issued by NSW Police – misunderstanding on the requirements ­– no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 31 May 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 March 2018. 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).

3. The delegate refused to grant the visa because the applicant had not applied for an Australian Federal Police check during the 12 months immediately before the day the visa application was lodged. The delegate found that she did not satisfy the requirements of did not satisfy cl. 485.213 of Schedule 2 to the Regulations.

4. The applicant sought review of that decision.

5. The applicant appeared before the Tribunal on 14 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages where required.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant satisfies cl.485.213.

8. 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.

9. The applicant indicated on his Subclass 485 visa application form that he had applied in the last 12 months to the AFP for a check of criminal records and provided both a receipt number and date.  The applicant then provided a National Police Certificate issued by NSW Police, to support his application. The department sent an email to the applicant requesting that he lodge an application for a Complete Disclosure Australian Federal Police on 30 April 2018 with detailed instructions were provided with this request as to how to apply for the appropriate police check. Having afforded the applicant 28 days in which to provide evidence of an AFP check, the delegate made a decision to refuse the application when an AFP clearance was not provided. 

10. The applicant provided a statement on review in which he wrote that he had asked the officer at the local police station for a National Police certificate. He wrote that despite mentioning that he needed it for his Subclass 485 visa, the officer still processed the application and he trusted the officer. The applicant said he did not realise that the National Police Certificate from the NSW Police obtained was not the correct one until the decision was made. He had not received the letter from the department requested the AFP check and now he is unable to make a new application for the Subclass 485 visa.

11. During the hearing, the applicant stated that he had attended a local police station to obtain the check. He thought the police officer would know that he was not supposed to apply there for the check he needed. He confirmed that he did not apply to the Australian Federal Police until after the decision was made to refuse his visa. The Tribunal indicated at the hearing that it was unable to make a favourable finding in the circumstances.

12. While the Tribunal accepts that the applicant had made an application for a police check in the 12 months before his visa application was made, it was not for an Australian Federal Police check as required by cl.485.213. The applicant was given an opportunity by the department to provide the correct check, but did not provide the results of that check by the date allowed.

13. On the evidence before the Tribunal, the applicant had not applied for an AFP check during the 12 months immediately before the day his application was made. In the circumstances, it cannot be said that his application was accompanied by evidence of having applied for an Australian Federal Police check as required by cl.485.213. 

14. The Tribunal accepts that the applicant’s failure to provide evidence of having applied for an AFP check at the time his Subclass 485 visa application was due to a misunderstanding on his part of the requirements involved in making such an application, specifically the need for evidence of having applied for an AFP check and not a National Police Check from NSW Police. Based on the date of the AFP check and the receipt given to the Tribunal, it appears that he had applied for the AFP check after the decision was made to refuse his visa. The check confirmed that there were no disclosable outcomes in respect of the applicant. Given that he was sent a letter from the department with detailed instructions on how to apply for this check, it appears that the department may have accepted the National Police Certificate issued by the AFP if he had responded within the 28 days allowed. It is unclear to the Tribunal on what basis this would have met the requirements of cl.485.213 which require the applicant to apply for the AFP check in the 12 months before the visa application was made. In any case, the Tribunal does not have any discretion to waive the requirement that the applicant meets cl.485.213 of Schedule 2 of the Regulations.

15. On the evidence before the Tribunal, the applicant does not satisfy cl.485.213.

16. 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

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

    Wan Shum
    Member