Yim (Migration)

[2022] AATA 877

Yim (Migration) [2022] AATA 877 (31 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Bomi Yim

REPRESENTATIVE:  Ms Jungmin Lee (MARN: 1279501)

CASE NUMBER:  2117201

HOME AFFAIRS REFERENCE(S):          BCC2020/2323086

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         31 March 2022 at 3:32 pm (VIC time)

DATE OF WRITTEN RECORD:                8 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 08 April 2022 at 5:01pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post-Study Work Stream – applicant did not provide evidence of having applied for a Federal Police check with the application – time of lodging the application –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
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 4 November 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 31 March 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 Bomi Yim you applied for a subclass 485 Temporary Graduate Post-Study Work Stream visa on 17 September 2020.  The delegate considered your case and found you did not meet the requirements for the grant of a visa. 

4. 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.  I read from that decision and it became apparent that you did understand why the decision has been made.

5. To be eligible for the grant of a 485 visa, an applicant must satisfy a range of requirements set out in the Regulations.  One of those is clause 485.213, which states that to satisfy the requirement when the 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 day the application was made.  I read from your decision and it states that when you filled in your application you declared you had not applied for a police check in the preceding 12 months.  There was no evidence of a police check having been provided and therefore the delegate found you did not satisfy the requirements for 485.213.

6. You provided the Tribunal with a submission, including a letter, in which you said that you recognised it was a foolish mistake, a human error, and you made the comment:

   I have no intention to claim that the decision was unfair.  However, as I have a chance, I would like to spend some spaces to appeal my situation. 

7. You explained that during COVID with borders closing you suffered depression. You became lonely and exhausted and lost your job a result of which was that your income ceased, and you ran out of money. You could not afford a migration agent to help you lodge your application.  You say that during the pandemic you received no support from the Australian government, which deeply disappointed you. 

8. You made the point that in completing the application you answered the question 'No', indicating that you had not applied for a police check in the preceding 12 months, but it allowed you to proceed and complete the application, to pay the application fee and submit the application, which you believe is misleading.  You say you didn't get a decision for one year and two months after you lodged the application and say that if you had been notified earlier, you would have been able to provide the police check as required.  You believe that the decision is harsh. 

9. The Tribunal makes the point that page 8 of the application also advises that you need to provide Federal Police check in addition to the question that is asked very early on in the application. 

10. You say you understand there have been many other cases in the past where this has happened, but you say despite this the Department have not amended the application process which you have said you believe is unfair. 

11. You currently work as an accountant which is an in-demand occupation in Australia, and you repeatedly made the comment that you have made a contribution to the Australian economy where there is a skills shortage and accountants are on the shortage list, and if given the opportunity you will continue to make this contribution to Australia for the next couple of years. 

12. You say you have a clear police record in Australia and in Korea.  There are no incidents that would in any way impact on a character test or be adverse to a visa application, and you have subsequently provided an AFP check dated November 2021, which is clearly more than a year after your application was lodged.

13. When asked if he would like to speak, your partner Mr Han said, 'We only found out it was a requirement after 14 months.'  He believes it should not be a yes/no answer.  If answering 'No' means that you are ineligible, then there should be some sort of a warning.  He believes that you should be given another chance.  He repeated that you have no criminal charges here or in Korea.  You are working as an auditor.  And he made the claim that he has done research that shows that some people who are asked, after answering the question 'No', were contacted by the Department and given the opportunity to subsequently provide an AFP check. 

14. It is not the role of the Tribunal to be considering whether or not the application process is fair or otherwise.  My job is to consider whether you satisfy the requirements for the visa and it is not a matter in which the Tribunal has discretion. 

15. The requirement is that when the application was made, it was accompanied by evidence that you had applied for an AFP check during the 12 months immediately before the day the application was made.  It is a mandatory requirement that must be met at the time of lodging the application. 

16. As you did not provide evidence of having applied for a Federal Police check with your application, you do not satisfy regulation 485.213.  And as 485.213 is not met, the criteria for the grant of a 485 visa are not met, and therefore it is the decision of this Tribunal to affirm the decision under review.

17. This decision was made at 3.32 pm on this 31 March 2022.

    DECISION

18. The Tribunal affirms the decision under review.

    Tim Connellan
    Member