Waheed (Migration)

[2020] AATA 4932

Waheed (Migration) [2020] AATA 4932 (3 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdullah Waheed

CASE NUMBER:  1919961

DIBP REFERENCE(S):  BCC2019/3274909

MEMBER:Susan Trotter

DATE AND TIME OF

ORAL DECISION AND REASONS:         3 November 2020 at 11:55 am (QLD time)

DATE OF WRITTEN RECORD:                17 November 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 17 November 2020 at 12:41pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – application for Australian Federal Police check – ‘12 months immediately before the day of the visa application’ – AFP check applied on the same day as visa application – application not accompanied by required evidence – whether a receipt or reference number was provided during the online application process – Written Record of Responses – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.213

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 July 2019 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).

2. At the hearing on 3 November 2020, the Tribunal made an oral decision. The following are the written reasons for that decision.

   STATEMENT OF DECISION AND REASONS

3. The applicant, a now 29-year-old citizen of Pakistan, applied for the visa on 29 June 2019. Visa Class VC contains Subclass 485.

4. 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.

5. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.213 because he had not provided evidence at the time of his application that he had applied for an Australian Federal Police check in the 12 months prior to lodgement of his visa application as required.

6. The applicant lodged an application with the Tribunal on 22 July 2019 and provided a copy of the delegate’s decision.

7. The applicant appeared before the Tribunal by telephone on 21 September 2020 and 3 November 2020 to give evidence and present arguments. The applicant was represented in relation to the review.

8. The Tribunal exercised its discretion to hold the hearings by telephone. The hearings were held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearings by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearings were not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

9. For the following reasons, at the second hearing on 3 November 2020, the Tribunal delivered a decision affirming the decision under review to refuse to grant the visa.

   ISSUES

10. 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.

11. It follows that the issues for the Tribunal to determine are:

    (a)  Had the applicant applied for an Australian Federal Police check during the 12 months immediately before the day the visa application was made on 29 June 2019? And, if so,

    (b)  Was the visa application accompanied by evidence of the applicant having applied for an Australian Federal Police check during the 12 months immediately before the day the visa application was made on 29 June 2019?

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The documentary evidence and written submissions relevant to the issue before the Tribunal included as follows:

    (a)A written Record of Responses on the Department file, showing a Generated date and time of ‘June 29, 2019, 4:13:52PM (AEST)’, including the following:

    …

    To be eligible to be granted a subclass 485 visa through the Graduate work stream, you must have already taken steps to meet certain requirements and obtain documentation before you lodge your application. If you do not meet the requirements below, you may not be able to lodge or to be granted a visa.

    …

    Australian Federal Police

    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:

    No

    (b)A receipt from the Australian Federal Police dated 29 June 2019 showing that the applicant applied for a National Police Check with Receipt Number: 54736413 and Check ID number 5617468PC showing payment in the amount of $42 by credit card (noting that credit card subcharges are not shown).

    (c)A Mastercard receipt for $42.14 showing ‘Aus Federal Police Sydney Ns Aus’ issued at 2.43 pm on 29 June 2019 (Syd/Melb time).

    (d)A Mastercard receipt for $1,555.14 showing ‘Department of Home Aff Southport’ issued at 4.13 pm on 29 June 2019 (Syd/Melb time).

    (e)A Tax Invoice from the Department of Home Affairs dated 29 June 2019 for $1,535 for ‘VC485 Temporary Graduate VAC1’ in the applicant’s name.

    (f)A screenshot of the applicant’s incoming emails showing in order 1) email from AFP – National Police Checks on 29 June, then 2) an auto-letter-generator ‘IMMI Acknowledgement of Application Rec’ and then 3) an auto-letter-generator ‘IMMI Bridging Visa Grant Notification - BC’.

    (g)An Australian Federal Police Certificate for the applicant dated 8 July 2019.

    (h)Written submissions dated 27 October 2020 which included that:

    ·   A timeline confirmed by documentary evidence showing that the applicant applied for an Australian Federal Police check on 29 June 2019 prior to submission of the Subclass 485 visa application.

    ·   The delegate’s decision record, which the applicant provided to the Tribunal when lodging his application which included the following:

    Departmental systems verify that the application did not provide any additional documentation at the time of their application to indicate that they had applied for an Australian Federal Police check prior to lodgement of their visa application.

    ·Although the applicant incorrectly answered ‘No’ to question of whether he had applied for an Australian Federal Police check in the 12 months prior to the application, the online application prompted the applicant to include details of the Australian Federal Police check application or certificate and that the applicant had these details to hand at the time of application and submits that he included them in this section on the online form.

    ·   Further checks of the online application process confirm that applicants are prompted to enter information confirming details of an Australian Federal Police check result or application, even when they have responded ‘No’ to the question of whether they had applied for an Australian Federal Police check in the 12 months prior to the application.

    ·   To test this claim, an online 485 application was drafted (for a dummy applicant) with responses which mirrored those of the review applicant’s own Subclass 485 application, with screenshots of the dummy application showing that even with a ‘No’ response the online process then brings up a screen which states ‘Provide Australian Federal Police check details for all persons included in this application who are 16 years of age or over’ as follows:

    Name                   Date of Request          Reference Number      Action ?

    Add details ?

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    (i)As part of an exchange of emails between the Department and the applicant on 8 July 2019 following refusal of the visa application, the applicant stated in an email dated 8 July 2019 (unedited):

    …

    Yes I had applied my AFP check before lodgement of the visa application and I had also put the Refrence No of the receipt in the application for that but i accidentally tick no to that question I mis-read the statement but i have a receipt which indicates i have applied my AFP check before lodgement of the visa.

13. The Tribunal discussed with the applicant at both hearings its concern, as also canvassed in the delegate’s decision provided by the applicant to the Tribunal, that the applicant’s visa application was not accompanied by evidence that the applicant had applied for an Australian Federal Police check in the 12 months immediately before the date of the visa application.

14. The applicant’s evidence at the first hearing on 21 September 2020 included that he made the application unassisted. He said that when he made the application, there was a section in the online application which asked him to put in the reference number of the Australian Federal Police check application. He cannot remember which number he put in, the receipt number or the other number on the receipt. However, he has not been able to find that number that he provided on the written responses record for the application. The applicant told the Tribunal that when he lodged the application, he went to the Australian Federal Police check page and it was asking for the reference number and he put the number in (he does not know whether it was the reference number or the index number off the Australian Federal Police check receipt) and then it (the application) allowed him ‘to go next’.

15. The Tribunal discussed with the applicant the written Record of Responses on the Department’s file, being a written record of the online application made by the applicant. The Tribunal noted that it shows that the application included the following wording:

    To be eligible to be granted a subclass 485 visa through the Graduate work stream, you must have already taken steps to meet certain requirements and obtain documentation before you lodge your application. If you do not meet the requirements below, you may not be able to lodge or to be granted a visa.

16. The written Record of Responses/online application then goes on to ask a number of questions including in relation to age, skills assessment, study, language requirements, etc. One of the questions to be answered is in relation to the Australian Federal Police check under the subheading, ‘Australian Federal Police’ which states: ‘Have you and all persons included in the 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’.

17. The Tribunal discussed with the applicant that its understanding is that when doing the application online, if he had responded ‘Yes’ to the question about the Australian Federal Police check, the application then allows completion of details but that a ‘No’ response does not allow such an option. The Tribunal emphasised that this was its understanding only, as is seemingly reflected in the written Record of Responses. The Tribunal explored with the applicant whether he did two applications such that on one occasion he might have responded ‘Yes’ to the Australian Federal Police check and did not complete that application but started another application. The applicant restated that despite answering ‘No’ to the Australian Federal Police check question, the online application did then ask him for a receipt number which he provided. He told the Tribunal that he misunderstood the question. He thought that it meant had he applied for an Australian Federal Police check prior to him applying on 29 June 2020.

18. The Tribunal adjourned following the first hearing to check whether there was any indication on the Department’s file that the applicant had provided a receipt number for the Australian Federal Police check as had been the evidence of the applicant and as referred to in the applicant’s contemporaneous email to the Department of 8 July 2019. The Tribunal’s further queries did not result in any evidence from the Department file that the applicant had provided a receipt (or other) number for the Australian Federal Police check application as part of the visa application made by the applicant on 29 June 2019.

    Issue 1 − Had the applicant applied for an Australian Federal Police check during the 12 months immediately before the day the visa application was made on 29 June 2019?

19. As discussed with the applicant and his representative at the second hearing, given the timeline provided by the applicant, as corroborated by the documentary evidence provided by the applicant, the applicant applied for the Australian Federal Police check at 2.43 pm on 29 June 2019 and then applied for the Subclass 485 visa the subject of this application at 4.13 pm on 29 June 2019.

20. Much of the focus of the hearings before the Tribunal was in relation to whether the applicant had provided a receipt (or other) number to the Department when he made the visa application which is relevant to the second identified issue of whether the visa application was accompanied by evidence of having applied for an Australian Federal Police check.

21. The Tribunal did, however, also raise with the applicant and his representative its concern that even if the Tribunal was satisfied that a receipt number had been so provided, the wording of cl.485.213 requires that the application for an Australian Federal Police check is required to have been made in the ‘12 months immediately before the day of the visa application’, that is prior to the day of the visa application.

22. There is no ambiguity in the wording. The application for the Australian Federal Police check must have been in the ‘12 months immediately before the day the visa application was made’.

23. It is clear on the evidence that the applicant applied for the Australian Federal Police check on 29 June 2019, the same day as the day upon which he applied for the visa such that the Tribunal is unable to be satisfied that the applicant applied for an Australian Federal Police check during the 12 months immediately before the day the visa application was made on 29 June 2019.

    Issue 2 − Was the visa application accompanied by evidence of the applicant having applied for an Australian Federal Police check during the 12 months immediately before the day the visa application was made on 29 June 2019?

24. Based on the evidence before it, the Tribunal is unable to be satisfied that the visa application was accompanied by evidence of the applicant having applied for an Australian Federal Police check. The Tribunal acknowledges, as demonstrated by the ‘dummy application’ conducted by the applicant and his representative, that despite answering ‘No’ to the Australian Federal Police check question in the visa application, that it may have been possible for the applicant to have provided a receipt or reference number (for the Australian Federal Police check application) at the time of the visa application. However, the only evidence before the Tribunal of the applicant having done so is the applicant’s oral evidence. This is not corroborated in the Written Record of Responses confirming the responses made by the applicant in completing the online application and the delegate has also confirmed in their decision record (provided by the applicant to the Tribunal and referred to in the applicant’s representative’s written submissions) that the ‘Departmental systems verify that the application did not provide any additional documentation at the time of their application to indicate that they had applied for an Australian Federal Police check prior to lodgement of their visa application’.

25. Having had regard to all matters, the Tribunal is not satisfied on the evidence that the visa application was accompanied by evidence of the applicant having applied for an Australian Federal Police check. Further, in any event, given the evidence of the applicant is that the application for the Australian Federal Police check was made on the same day as the visa application, for the reasons canvassed in relation to the first issue, in any event the Tribunal is not satisfied that the visa application was, or could have been, ‘accompanied by evidence of the applicant having applied for an Australian Federal Police check during the 12 months immediately before the day the visa application was made on 29 June 2019’.

26. The Tribunal therefore finds that the visa application was not accompanied by evidence of the applicant having applied for an Australian Federal Police check during the 12 months immediately before the day the visa application was made on 29 June 2019.

    Conclusion

27. 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 he had applied for Australian Federal Police check during the 12 months immediately before the date on which the visa application was made.

28. The Tribunal notes that the requirement at issue is a very technical one and acknowledges the understandable concerns of the applicant in this regard. 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 background circumstances. As discussed with the applicant at hearing, the Tribunal must follow the law as written and cannot change the law, regardless of its acknowledgement of the applicant’s position and the technicality of the issue in the question.

29. The Tribunal appreciates that this is a very technical and seemingly unfair result, particularly given the close timing of the Australian Federal Police check application and the visa application, and further the uncertainty about the online application process and the provision of the receipt number. However, there is no discretion that the Tribunal can exercise.

30. For the Reasons given, cl.485.213 is not satisfied as required.

31. 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

32. The Tribunal affirms the decision under review.

    Susan Trotter
    Member