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发表于 2011-10-22 14:00:31
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DECISION RECORD
APPLICANT: Mr Jakub January Grabowski
MRT CASE NUMBER: 0907055
DIAC REFERENCE(S): BCC2009/105163
TRIBUNAL MEMBER: Kira Raif
DATE: 15 August 2011
PLACE OF DECISION: Sydney
DECISION: The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 (Skilled - Graduate) visa:
cl.485.216 of Schedule 2 to the RegulationsSTATEMENT 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 and Citizenship 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 to the Department of Immigration and Citizenship for the visa on 3 March 2009. The delegate decided to refuse to grant the visa on 12 August 2009 and notified the applicant of the decision and his review rights.The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.216 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the application was accompanied by evidence that the applicant had applied for an AFP check.The applicant applied to the Tribunal on 1 September 2009 for review of the delegate’s decision. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(2) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.347 of the Act.RELEVANT LAW
The Skilled (Provisional) (Class VC) visa permits graduates of Australian educational institutions and people who have held certain temporary skilled visas to reside in Australia temporarily in order to obtain skills and qualifications required for permanent General Skilled Migration visas. At the time the visa application was lodged, the Skilled (Provisional) (Class VC) visa class contained the following subclasses: Subclass 485 (Skilled – Graduate) and Subclass 487 (Skilled – Regional Sponsored).The criteria for a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Regulations. One of the primary criteria to be satisfied at the time of application is that the application is accompanied by evidence of police checks: cl.485.216. The issue in the present case is whether the application was accompanied by evidence that the applicant had applied for an AFP check.CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.The applicant is a national of Poland, born in November 1982. He was first granted a Student visa in August 2003 and he has been granted a number of other visas since then. Between 2003 and 2005 the applicant completed an Advanced Diploma of International Business and from February 2006 to August 2008 he undertook a Bachelor of Business in Accounting at the Southern Cross University.The applicant applied for the Skilled (Provisional) Class VC visa on 3 March 2009. Included with the application were various personal documents, evidence of the applicant’s educational qualifications, skills assessment, IELTS test results and other material.On 12 August 2009 the delegate decided to refuse to grant the visa to the applicant. The delegate was not satisfied that the application was accompanied by evidence that the applicant had applied for the AFP police check. Accordingly, the delegate was not satisfied that the applicant met cl. 485.216.The applicant sought review of the delegate’s decision on 1 September 2009. On 25 March 2011 the applicant provided a submission to the Tribunal, through his representative, in which he made the following claims. The applicant stated that he did provide two AFP certificates dated 10 July 2008 and 1 February 2009 with his application and stated that these had been misplaced by DIAC. He provided copies of two AFP certificates, dated July 2008 and February 2009 respectively, as evidence of having made arrangements to obtain the AFP certificate before making his visa application. The applicant stated that he meets cl. 485.216. The applicant outlined the steps he took to obtain the two AFP certificates and to post these materials to DIAC. He notes that DIAC had not requested him to provide these documents. The applicant referred to cases such asMevada v Minister for Immigration [2010] FMCA 616 (‘Mevada’), Habbib & Ors v Minister for Immigration [2010] FMCA 450 (‘Habbib’) and Berenguel v MIAC [2010] HCA 8 (‘Berenguel’) and submits that he can provide evidence of the AFP checks until the time of the Tribunal’s decision and that evidence has been provided, together with evidence of his skills assessment.On 2 August 2011 the Tribunal wrote to DIAC seeking information about the inclusion of the police reports in the primary application. On 10 August 2011 DIAC provided to the Tribunal copies of its electronic records which make no reference to the provision of the AFP certificate with the primary application.FINDINGS AND REASONS
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.The issue in the present case is whether the application was accompanied by evidence that the applicant had applied for the AFP check. The applicant argues, firstly, that he did apply for the AFP check and provided that evidence to DIAC with his application. In the alternative, the applicant argues that such evidence could be provided at any time. The applicant seeks to rely on authorities such as Mevada, Habbib and Berenguel, claiming that he can provide evidence of having applied for an AFP check at any time until the Tribunal’s decision is made.To deal first with the latter submission, the Tribunal notes that the High Court in Berenguel v MIAC [2010] HCA 8 sought to distinguish the requirement in cl. 885.214 (which is similar, for present purposes, to cl. 485.216) and the English language proficiency requirement in other provisions, because in case of cl. 885.214 (and, equally, in the Tribunal’s view, cl. 485.216), the requirement that the application must be accompanied by evidence is contained in the provision itself and not merely in the heading (see Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 at [17]). The Tribunal has formed the view that the authorities cited by the applicant do not extend to the provision in question and do not establish that the evidence required by cl. 485.216 can be met at any time before the decision is made. The Tribunal finds that the time of application requirement contained in cl. 485.216 does operate in a way that requires the application to be accompanied by the relevant evidence at the time when the application is made. The Tribunal finds that authorities such as Berenguel, Habbib and Mevada do not assist the applicant.The applicant also argues that he did provide the AFP certificate with the application. The applicant provided a detailed description of the process he had employed when lodging the application, including obtaining the relevant documents, having the documents certified and taking these to the post office to lodge with his migration application. The applicant provided copies of the AFP certificates, dated July 2008 and February 2009, suggesting that both were obtained before his visa application was made.The evidence before the Tribunal suggests that the applicant was well aware of the requirement to submit the AFP certificates with the application and that he had taken steps to obtain these certificates before he made the application. The Tribunal also finds the applicant’s evidence about the steps he took to lodge his application to be both credible and persuasive. It would appear to make little sense for the applicant, who was aware of the requirement in cl. 485.216, to obtain the AFP certificate and its update, but then not to include the certificates in his application, despite clearly taking great care when making the application.The Tribunal has had regard to the Department’s electronic records which do not indicate that the AFP certificate was included in the application. However, it is not uncommon for such records to be less than fully accurate. The Tribunal considers it possible, as the applicant suggests, that some of the materials that he had submitted, may have been misplaced during the processing of the application or not recorded on the DIAC systems. The fact that the AFP certificates records do not appear on the DIAC electronic system is not, in the Tribunal’s view, determinative.Having considered all the material before it and, in particular, having regard to the very thorough description that the applicant had provided of the steps he undertook to make the application and the fact that he did apply for two AFP certificates well before his application was made, the Tribunal is satisfied, on balance, that the applicant did include the AFP certificate with his application. The Tribunal is satisfied that the application was accompanied by evidence that each person included in the application who is at least 16 had applied for an AFP police check during 12 months immediately before the application was made. The Tribunal finds that the applicant meets cl. 485.216.CONCLUSIONS
Given the findings made above, the Tribunal remits the matter with a direction that the applicant meets cl.485.216.DECISION
The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 (Skilled - Graduate) visa:cl.485.216 of Schedule 2 to the RegulationsKira Raif
Senior Member
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