KAUR (Migration)

[2021] AATA 4168

KAUR (Migration) [2021] AATA 4168 (16 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs AMANDEEP KAUR
Mr JASWINDER SINGH

CASE NUMBER:  2004202

DIBP REFERENCE(S):  BCC2019/6687519

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         16 September 2021 at 1:43 pm (VIC time)

DATE OF WRITTEN RECORD:                11 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 11 October 2021 at 10:24am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Post-study Work) – evidence about criminal history – applied for an Australian Federal Police check – allegedly flawed application process – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 56, 65
Migration Regulations 1994, Schedule 2, cl 485.213

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 20 February 2020 to refuse to grant the visa applicants Skilled (Provisional) (Class VC) Subclass 485 visas under the Migration Act 1958 (the Act).

2. At the hearing on 16 September 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Ms Kaur, on 16 December 2019, you applied for a subclass 485 Temporary Graduate post-study work visa.  The delegate considered your case and found you did not meet the requirements for the grant of a visa.  You appealed that decision to be reviewed by this Tribunal and with your review application, you included a copy of the primary decision which you told the Tribunal you had read and understood.

4. It was clear from our discussions at today’s hearing that you had a good and clear understanding of why your application had been refused.  To be eligible for the grant of a 485 visa, an applicant must satisfy a number of requirements set out in the regulations. 

5. One of those is clause 485.213 which requires that an application is accompanied by evidence the applicant has applied for an Australian Federal Police (AFP) check during the 12 months immediately before the day the application was made.

6. When I read the primary decision, it says that when you filled in your application, you declared you had not applied for a police check in the preceding 12 months and therefore, the delegate found you did not satisfy the requirements of regulation 485.213. 

7. You have given evidence today and provided a written submission that we have discussed. You stated that when you completed your studies, there was an emergency in India that required you to get home. You were keen to submit your application so you completed the form and answered all the questions you believed correctly and accurately.

8. You had not applied for an AFP check in the preceding 12 months which is why you ticked the “No” box, indicating you had not. 

9. You are keen to point out that at the start of the application it states that to be eligible for the grant of a 485 visa through the post-study work stream, you must have already taken steps to meet certain requirements and obtain documentation before you lodge your application.

10. It states: “If you do not meet the requirements below, you may not be able to lodge or to be granted a visa”.  You say, and your agent argued at length that the application process is flawed on the basis that if an applicant answers “No” to a question, which means they will not be eligible for the visa, you believe the application process should prevent you from going any further.

11. And therefore, you say, you believe due to this error in the process, the application form is deficient.  As I said to your agent, it is not the role of the Tribunal to engage in a discussion or argument about whether the application process is fair, whether they are inherently flawed or otherwise. The role of the Tribunal is to consider whether an applicant is eligible for the grant of a visa. 

12. On a number of occasions you referred to the fact that you ticked the “No” box as a small mistake. I am not sure I accept that it is a small mistake.  Your agent says that if we refer to the Procedure Advice Manual (PAM), it states that an officer may make a section 56 request for evidence of character by way of an AFP check if it was not provided at the time of application.

13. In response to your agents points, there are two issues. Firstly, PAM is not policy and does not provide procedure that the Tribunal must follow.  And secondly, what that sentence says is that the officer may make a section 56 request, (emphasis added). It does create an obligation or responsibility on the officer to proceed down that path.

14. Your agent states his belief that it is there for procedural fairness and if it’s going to be used selectively, it destroys the purpose of it.  I repeat, it is not the role of the Tribunal to be discussing the merits of the application process.  The fact is that evidence of application for a police check is a mandatory requirement that must be met at the time of lodging a subclass 485 post study work stream visa application.

15. It is unambiguous stating that the application must be accompanied by evidence that an applicant had applied.  You had not applied for an Australian Federal Police check at the time of your application and consequently you do not satisfy clause 485.213.

16. As 485.213 is not met, I find the criteria for the grant of a subclass 485 temporary graduate visa in the post-study work stream are not met.

17. It is therefore the decision of this Tribunal to affirm the decision under review. 

    DECISION

18. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member