Tran (Migration) - [2018] AATA 1449

Tran (Migration) [2018] AATA 1449 (8 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Cao Minh Tuan Tran
CASE NUMBER:  1725539
DIBP REFERENCE(S):  BCC2017/3115723
MEMBER:Amanda Mendes Da Costa
DATE:8 May 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 08 May 2018 at 11:04am
CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Evidence of police checks – Applied for a police check before the visa application – Australian Police Check was not accompanied with the visa application – Decision affirmed
LEGISLATION
Migration Regulations 1994, ss 65, 351
Migration Regulations 1994 Schedule 2 cls 485.213, 485.223
CASES
Anand v MIAC [2013] FCA 1050
Nguyen v Minister for Immigration & Anor [2016] FCCA 1523
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 October 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 29 August 2017. 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.
The delegate refused to grant the visa because the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations.
The applicant appeared before the Tribunal on 19 March 2018 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether at the time the visa application was made, it was accompanied by evidence that the applicant had applied for an Australian Federal Police (AFP) check during the 12 months immediately before the day the application is made.
Evidence relating to police checks
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.
The applicant provided a copy of the Department’s decision to the Tribunal for the purposes of the review, in which it is noted that the applicant applied for the visa on 29 August 2017 and indicated in the visa application form that an AFP check had not been applied for in the past 12 months. The Tribunal has been provided with a Receipt for an AFP check issued by the AFP confirming that his application for a police check was made on 25 August 2017. The Tribunal accepts this document as genuine and is satisfied that the applicant had in fact applied for an AFP police check before the visa application was made.
The applicant subsequently obtained an AFP check which was confirmed by letter dated 8 September 2017.
The applicant claimed at the hearing that he did not realise that the AFP check was required to accompany the visa application, particularly as he had no criminal history.
The meaning of ‘accompanied’ has been considered in the recent cases of Anand v MIAC [2013] FCA 1050 and Nguyen v Minister for Immigration & Anor [2016] FCCA 1523.
In both of these cases the Courts were prepared to accept that evidence accompanying an application could be supplied after the application is lodged but held that there must still be a temporal connection with the application and that evidence supplied around the time of application may be sufficient.
In Anand’s case, Katzman,J observed:
“… I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged. Still, there must be some temporal connection with the application. Evidence supplied around the time of the application may be sufficient. I doubt for example, if the accompanying evidence appeared in an annexure which through advertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application. It might even extend beyond that. Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within the week and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as her, five months after the application was lodged and two days after the decision was made. Language cannot be stretched so far that it snaps (cf. Wielgus v Removal Review Authority [1993] 1 NZLR 73 at 79).”
The Tribunal notes that the applicant sent an email to the Department on 27 October 2017 in which he advised that he applied for an AFP check prior to lodging the visa application and attaching a copy of a letter from the AFP dated 8 September 2017, containing the results of his AFP check.
In the Tribunal’s view, the above authorities suggest that whilst it is possible to submit documents after the application was made, there must be a temporal connection between the application and the documentation that accompanies it. The Tribunal notes that the requirement in cl.485.223 is that the evidence of a police check must accompany the application “when the visa application is made”. That, in the Tribunal’s view, supports the interpretation that the evidence must be submitted at, or at least shortly after, or around the time of the application. The Tribunal is not satisfied that a two month delay (as occurred with the applicant) meets that temporal requirement.
Therefore the applicant does not satisfy cl.485.213.
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
The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Having regard to the applicant’s circumstances, in particular the fact that the applicant applied for an AFP check prior to lodging his visa application and having considered the ministerial guidelines relating to the Minister’s discretionary power under s351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.
Amanda Mendes Da Costa
Member

Details

AGLC: Tran (Migration) [2018] AATA 1449
Case: [2018] AATA 1449
Decision Date: 8 May 2018

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr. Tran, against a decision to refuse him a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The core of the dispute revolved around whether the applicant had satisfied a specific evidentiary requirement for the visa.

The legal issue before the Tribunal was whether the applicant's visa application was "accompanied by" evidence that he had applied for an Australian Federal Police (AFP) check within the 12 months immediately preceding the application date, as required by Clause 485.213 of the Migration Regulations. While the applicant had indeed applied for an AFP check shortly before lodging his visa application, the evidence of this application was not submitted at the time the visa was lodged.

The Tribunal considered the meaning of "accompanied by" in light of previous Federal Court decisions, specifically *Anand v MIAC* [2013] FCA 1050 and *Nguyen v Minister for Immigration & Anor* [2016] FCCA 1523. These cases established that while evidence could potentially be supplied shortly after lodging an application, there must be a close temporal connection. The Tribunal found that the applicant's evidence of applying for the AFP check, submitted some five months after the visa application and two days after the initial decision, was too remote to satisfy the requirement of accompanying the application. Consequently, the Tribunal affirmed the decision not to grant the visa. However, noting the applicant's circumstances and the timing of his AFP check application, the Tribunal recommended that the case be referred to the Department for consideration under the Minister's discretionary power.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issue in the present case is whether at the time the visa application was made, it was accompanied by evidence that the applicant had applied for an Australian Federal Police (AFP) check during the 12 months immediately before the day the application is made.Evidence relating to police checks 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. The applicant provided a copy of the Department’s decision to the Tribunal for the purposes of the review, in which it is noted that the applicant applied for the visa on 29 August 2017 and indicated in the visa application form that an AFP check had not been applied for in the past 12 months. The Tribunal has been provided with a Receipt for an AFP check issued by the AFP confirming that his application for a police check was made on 25 August 2017. The Tribunal accepts this document as genuine and is satisfied that the applicant had in fact applied for an AFP police check before the visa application was made. The applicant subsequently obtained an AFP check which was confirmed by letter dated 8 September 2017. The applicant claimed at the hearing that he did not realise that the AFP check was required to accompany the visa application, particularly as he had no criminal history. The meaning of ‘accompanied’ has been considered in the recent cases of Anand v MIAC [2013] FCA 1050 and Nguyen v Minister for Immigration & Anor [2016] FCCA 1523. In both of these cases the Courts were prepared to accept that evidence accompanying an application could be supplied after the application is lodged but held that there must still be a temporal connection with the application and that evidence supplied around the time of application may be sufficient. In Anand’s case, Katzman,J observed:“… I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged. Still, there must be some temporal connection with the application. Evidence supplied around the time of the application may be sufficient. I doubt for example, if the accompanying evidence appeared in an annexure which through advertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application. It might even extend beyond that. Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within the week and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as her, five months after the application was lodged and two days after the decision was made. Language cannot be stretched so far that it snaps (cf. Wielgus v Removal Review Authority [1993] 1 NZLR 73 at 79).”

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa. Having regard to the applicant’s circumstances, in particular the fact that the applicant applied for an AFP check prior to lodging his visa application and having considered the ministerial guidelines relating to the Minister’s discretionary power under s351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.Amanda Mendes Da CostaMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.