Yang (Migration)

[2020] AATA 2865

Yang (Migration) [2020] AATA 2865 (3 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Qi Yang

CASE NUMBER:  2000844

HOME AFFAIRS REFERENCE(S):          BCC2019/4910423

MEMBER:Jennifer Cripps Watts

DATE:3 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 3 June 2020 at 4:40pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – evidence of having applied for Australian Federal Police (AFP) Checks did not accompany the visa application– AFP Check was applied for after the visa application was lodged –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 65
Migration Regulations 1994, 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 16 January 2020 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 30 September 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 evidence that the applicant had applied for an Australian Federal Police (AFP) Check did not accompany the visa application.

4. The applicant attended the Tribunal hearing by phone on 3 June 2020 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by her registered migration agent, Lei An, who was the migration agent of record at the time of application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The determinative issue, as it was when the visa was refused is whether the applicant meets cl.485.213 of Schedule 2 to the Regulations which requires that:

   When the application was made, it was accompanied by evidence that:

   (a)  the applicant; and

   (b)  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.

8. At the beginning of the hearing it was explained to the applicant that the Tribunal, Federal Courts, and some other courts and tribunals, are currently conducting hearings by phone where it is appropriate due to the COVID-19 situation, and that her matter had been identified as suitable.  The Tribunal is satisfied that the audio was clear throughout the hearing.  Occasional clarification to questions and answers was sought which is usual in migration hearings where an interpreter is assisting.

9. The applicant lodged the online visa application, assisted by Ms An, on 30 September 2019.  An AFP Check dated 29 October 2019 accompanied the review application.  However, the AFP Check was at no time provided to the Department or uploaded to the applicant’s IMMI account relating to the visa application.

10. At the hearing, the Tribunal referred the applicant to her online visa application and her answer ‘No’ to the question, on the front page:

    ‘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?’

11. In addition, she was reminded that, at page 9. of 11. of the visa application, there is a section for an applicant to enter AFP Check details for ‘all persons included in this application’ and that no information was entered.  The applicant was invited to comment but seemed unsure of all details entered into her online application and requested that Ms An assist.  In the circumstances, the Tribunal spoke to Ms An who confirmed, among other things, that the AFP Check was applied for after the visa application was lodged and that it was not provided to the Department.  The applicant provided the Tribunal with written submissions from Ms An.  Ms An’s oral submissions at the hearing, relevant to the issue on the review, essentially reiterated. 

12. In the written submissions, not dated but received on 29 May 2020, the Tribunal is encouraged, essentially, to consider special circumstances in the applicant’s case, including the COVID-19 pandemic, the applicant’s ongoing employment in the hospitality sector and, if the decision to refuse the applicant’s visa is affirmed, that she will be s.48 barred from lodging a visa application onshore; relevantly another student visa to do a master’s degree.  The Tribunal has considered the submissions, but there is no discretion attached to cl.485.213.  Both the applicant and Ms An confirmed at the hearing that they understood the Tribunal had no discretion to waive the requirement that the applicant meet cl.485.213. 

    Evidence relating to police checks

13. 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.

14. The Tribunal has considered evidence relevant to the issue on the review and finds that the applicant’s visa application was not accompanied by evidence that she had applied for a police check in the 12 months immediately before the date of the visa application.

15. Therefore 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.

    Jennifer Cripps Watts
    Member