Quinn (Migration)

[2022] AATA 1637

Quinn (Migration) [2022] AATA 1637 (10 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mary Frances Elizabeth Quinn

CASE NUMBER:  2113455

HOME AFFAIRS REFERENCE(S):          BCC2020/36639

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         10 February 2022 at 1:52 pm (VIC time)

DATE OF WRITTEN RECORD:                28 February 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 28 February 2022 at 10:55am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – applicant did not provide evidence of having applied for an AFP check with application – post-Study Work Stream – AFP Check was applied for after the visa application was lodged – Ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cl 485.213

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 September 2021 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 10 February 2022 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 Mary Frances Elizabeth Quinn, you applied for a Subclass 485 Temporary Graduate Post-Study Work Stream Visa on 10 February 2020.

4. The delegate considered your case and found you do not meet the requirements for the grant of a visa, and you appealed that decision to be reviewed by this Tribunal.

5. With your review application you included a copy of the primary decision and told the Tribunal you had read and understood that decision, and you made it clear to the Tribunal that you had a very clear understanding of why that decision had been made.

6. To be eligible for the grant of a 485 Visa an applicant must satisfy a number of requirements set out in the regulations.  One of those is clause 485.213, which states that when an application was made it was accompanied by evidence the applicant had applied for an Australian Federal police check during the 12 months immediately before the date the application was made.

7. When I read from your 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.

8. We have discussed this matter today and you have clearly made the point that you believe that the process has resulted in an outcome that is unfair, and you believe that in part that is due to the fact that you say the application process is unclear.

9. It is different to the process for a Student Visa, which are the visas you have held previously, where when you lodged an application, if there was further evidence required, the department would request it before they made the decision.

10. You say that here you have made an honest mistake, and I am not sure that mistake is the right word, because I believe you knew what you were doing when you put down that, 'No, I have not had a check', because you did not realise that you needed one.

11. You made the point that you work with children, and have done so for some years, and in August 2019, which is clearly in the six months before you applied for this visa, your “Blue Card which is a  ‘working with children’ card was renewed, which you, I think fairly believed, would have required a police check.  So you believed that a police check probably was done at that stage, and the fact that the blue card was granted would indicate that there were no issues at least with that.

12. You made the comment that, 'I suspect this is not something that I have not heard before'.  And you are right, unfortunately this is a common problem, and I have more than a little sympathy for your case because I believe that what I have seen in too many cases are people that have answered a question honestly. 

13. The application form in no way flags that the provision of that answer is fatal to their chances of being a granted a visa.  It permits them to go on and lodge the application and pay the money, and it is not unusual for it to be two years before a decision is made, and they are told the application has been refused because they did not provide a police check.

14. At that stage, of course, it is too late for a number of reasons.  Firstly, the legislation requires that an application is accompanied by evidence that a police check has been applied for, so two years after the event is too late to rectify the issue.

15. Further, a 485 application needs to be made within six months after completion of studies, so clearly a decision two years after application prevents a further application.  There is the other element that many people applying for a 485, having completed tertiary studies are looking at gaining jobs that will launch them into careers, and because of their visa status they are unable to get jobs and progress their careers.  I cannot help but think that that outcome is not an outcome that would have been anticipated, expected by the legislation. 

16. You make the point that your training and your experience with a Master's Degree in primary teaching means that you are in a position to satisfy one of the requirements that is considered when looking at section 351, referrals to the Minister.

17. However, as I told you, this is not a matter in which the Tribunal has discretion whether or not you are eligible for the grant of a visa.  The police check is one of the mandatory requirements that must be met at the time of lodging the (Subclass 485) Post-Study Work Stream Visa application.  As you did not provide evidence of having applied for a Federal police check, you do not satisfy 485.213.

18. 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, and therefore it is the decision of this Tribunal to affirm the decision under review.

19. However, as I said, you asked that the Tribunal refer this matter to the department for Ministerial intervention, and you mention exceptional economic, scientific, cultural and other benefits that would result from you being permitted to remain in Australia, and I accept that your studies and your work, which happens to be in a field where we are short of professional staff at the moment, satisfies that requirement.

20. Another element is that I believe that the relevant legislation in this case, as I have detailed, has led to an unfair and unreasonable result because of the process of the application, and therefore as you have requested the Tribunal to refer the case to the department for consideration by the Minister pursuant to section 351, which gives the Minister a discretion to substitute a decision of the Tribunal for another that is more favourable if the Minister thinks that is in the public interest to do so, the Tribunal has considered your case, the guidelines provided for Ministerial intervention, and will refer the matter to the department for Ministerial intervention.

    DECISION

21. The Tribunal affirms the decision under review.

    Tim Connellan
    Member