Australian Immigration Daily News

How strict is strict, and how inflexible is inflexible?

Do the Migration Regulations elevate form over substance?

When the Regulations provide that an application must be “accompanied” by certain supporting evidence, does that mean that the evidence must be lodged “with” or “at the same time” as the application?

These questions are all presented by a “trio” of cases relating to Subclass 485 visas that recently appeared on the Austlii Website: Huang (Migration) (2017) AATA 1877 (13 October 2017); Lim (Migration) 2017 AAT 1878 (13 October 2017) and Khan (Migration) (2017) AATA 1899 (13 October 2017).

It should be noted that all of these cases were decided by the same Tribunal member, Alison Mercer.

All three decisions were unfavourable to the applicants, affirming decisions by the Department which refused 485 visa applications.

Also: the day on which these decisions were handed down was on Friday the 13^th of this month, evidently an “unlucky day” for the applicants!!

And: all three of these Tribunal decisions were made on the same basis:

Namely, that since the applications were not, when made, “accompanied by” evidence that the applicant had applied for an Australian Federal Police Check during the 12 months immediately before the applications were made – see clause 485.213 of Schedule 2.

In each of these cases, the Tribunal concluded that the failure to submit evidence that the AFP check had been applied for within the 12 month period before the application was “fatal” to the application. The Tribunal took the view that the wording of clause 485.213 is “clear” and that it was “bound to apply the law as written” , and that it therefore did not have any power to “waive” or “overlook” a formal failure by an applicant to obtain a police  check prior to the lodgment of the application.

Even though, in each of these cases, when the police checks were ultimately obtained, they showed that the applicants did not have any criminal records in Australia, and that there were thus no grounds relating to “character” for refusing the applications (as a matter of substance).

Thus, in each of these cases, compassionate or extenuating circumstances were not enough, in the Tribunal’s view, to enable the grant of the 485 visas:

In Huang,  the applicant’s claim was that he was in the process of gathering the supporting documents to lodge with his application, but that he had unexpectedly needed to return to China to see his terminally ill grandmother, and was thus unable to obtain the AFP clearance before he lodged his visa application;

In Lim, the applicant was not sure whether he had to obtain the AFP check before he made the application, or whether he could provide it afterwards (as had been his experience with other visa applications). When the applicant checked with the Department about the requirement, he was told to look online, but the material that he had viewed did not clarify what should be done.  It is noteworthy that although the Tribunal acknowledged that the Department’s online application form for 485 visas has “some ambiguity” about whether the AFP check must be provided with the application, it nonetheless affirmed the refusal (!).

Lastly, in Khan, the applicant’s migration agent gave evidence to the Tribunal that it had been the agent’s experience that in previous 485 cases, the Department had always sent out requests concerning outstanding documents, including the AFP checks, before making a decision on the applications, and indeed, that the Department had granted 485 visas to other clients even though they had not applied for the checks before making their applications. Further, in Khan, there was evidence that the applicant had not been informed by his agent that he had to arrange for an AFP check before he lodged his application for the 485 visa.

Is there not at least an argument that the regulation at issue in these cases, 485.213, is inconsistent with the Migration Act, and thus an invalid regulation?  After all, section 55 of the Act does provide that applicants may submit additional information to the Department in support of a visa application before a decision has been made, and that the Department is required  to have regard to that information.

Also: there have been decisions from the Federal courts which have been discussed on this blog , relating to the requirement under 485.223, that an application for a 485 visa must be accompanied by evidence that an applicant has applied for a skills assessment which suggest that the evidence does not necessarily have to be submitted contemporaneously with the application – see for example Anand v Minister for Immigration & Citizenship (2013) 215 FCR 562. In other words, this case law suggests that the phrase “accompanied by” does not necessarily mean that the supporting evidence must be provided at the same time that the application is made.

So: there maybe arguments that can be raised to argue against the strict, rigid and inflexible approach that was taken by the Tribunal in these cases – although of course the best practice would be to avoid the issue altogether, and to ensure that in deed, evidence is provided at the same time that the 485 application is lodged that an AFP check has been sought within the 12 months preceding the application!

Also: the Migration Regulations do contain “traps for the unwary”, and an application that may otherwise satisfy the criteria may get refused due to a failure to comply with a seemingly “technical” requirement that a document or evidence “accompany” the application.

Beware!