IMMIGRATION: THE LAW ON APPEAL
Applicant wins a temporary graduate visa
By ATTY. JESSIE ICAO
THE dream of staying
as a legal resident of
Australia can sometimes
be shattered by a simple
mistake in complying with
the legal requirements.
This happened to a Filipina nurse from
Zamboanga City who studied again in
Australia for Bachelor of Nursing deg ree to
be a registered nurse in Australia.
After completing her Bachelor of
Nursing degree in Australia, the applicant
applied for temporary residence known as
Graduate Temporary (subclass 485) visa.
As she was not represented by a lawyer,
she applied on her own and uploaded the
Australian Federal Police (AFP) certificate
which is required at the time of the
application.
Unbeknown to her, the Department of
Immigration and Border Protection required
an AFP police certificate which is a complete
disclosure.
As she had submitted only a standard
disclosure AFP Police and not a complete
disclosure certificate, her application was
refused by the Department.
Her dream of staying in Australia was
shattered because, if the decision was not
overturned, it meant that she had to return
to the Philippines and apply offshore as she
was barred by section 48 of the Migration
Act 1958 which prohibited an applicant from
applying for another substantive visa if she
had lodged an application on shore which
had been denied.
www.kalatas.com.au
Sometimes the Department of Immigration and Border Protection
fails to correctly interpret the legislation, writes JESS ICAO
The issue in this case was a legal issue:
Whether the law on subclass 485 visa
required submission of complete disclosure
police certificate not a standard disclosure
which was the document submitted by the
applicant.
Her lawyer successfully appealed her
case before the Administrative Appeals
Tribunal (Case No. 1707119) on the
following grounds:
The requirement for a complete
disclosure AFP certificate is only an internal
policy of the Department as contained in
PAM 3 Sche2Visa485 where it says that the
‘only acceptable police certificate for visa
purpose will have ‘complete disclosure’ in
the heading.
The lawyer’s argument was that an
internal policy of the Immigration cannot
override the enacted law when it says in
clause 485.213 of the Migration Regulations
1994 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 Police check during
the 12 months immediately before the
applicant is made.
Clearly, a clear reading of the Regulation
did not specify submission of the complete
disclosure.
The requirement was for an AFP
certificate to accompany the application.
The Tribunal in its decision in [11]
considers that there is merit in each of our
submissions.
In particular, the Tribunal accepted
our submission that the Act requires
the applicant to have applied for an AFP
National Police Check during the 12
months immediately before she made her
application.
The legislation does not set out any
qualification on the type of National Police
Check that has to be applied for.
Further, the Tribunal said that the
applicant submits, correctly in its view, that
PAM 3 does not have the effect or status
of legislation and cannot override a clear
provision in the Migration Regulations.
This is a case where sometimes the
Department of Immigration and Border
Protection fails to correctly interpret the
legislation and the necessity for the losing
applicant to seek appropriate legal advice
on whether the Department made a
mistake in interpreting the legislation which
warrants successful appeal. n
JESSIE ICAO is a practising
solicitor in the State of New South
Wales and registered migration
agent since 1993 (MARN 9367993).
He is admitted as a lawyer in the
Philippines. The information
provided is of general nature and
cannot be relied in its entirety.
I suggest that you consult a
registered migration agent or refer
to the relevant law.
AK NewsMagazine, Vol 7 No 10
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JULY 2017
07