Chan (Migration)

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse the applicant a Skilled (Provisional) (Class VC) visa, specifically Subclass 485. The applicant had applied for the visa on 29 December 2018. The delegate refused the visa on the basis that the applicant had not satisfied clause 485.213 of the Migration Regulations 1994, which requires evidence of having applied for an Australian Federal Police (AFP) check within the 12 months immediately preceding the visa application.

The primary legal issue before the Tribunal was whether the applicant had provided sufficient evidence of having applied for an AFP check within the prescribed timeframe. The applicant contended that a Queensland Blue Card, which includes an AFP check, should have been accepted as a substitute. The applicant also claimed to have been advised by the Department of Home Affairs that the Blue Card might be a valid substitute.

The Tribunal considered clause 485.213 of the Migration Regulations, which mandates evidence of an application for an AFP check. The applicant had provided a Blue Card and information about the Blue Card system, which indicated it was "more than a police check." However, the Tribunal found that the regulation specifically required evidence of an *application for an Australian Federal Police check*, not a broader check that might encompass an AFP check. The Tribunal noted that the applicant's assertion of being told by the Department that the Blue Card could be a substitute did not alter the regulatory requirement. The Tribunal concluded that there was no power to waive this specific requirement.

The Tribunal affirmed the delegate's decision to refuse the visa. The applicant had failed to satisfy the criterion that required evidence of an application for an Australian Federal Police check within the 12 months immediately before the day the visa application was made.