Cheng (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, in the Post Study Work stream. The applicant sought review of the delegate's decision to refuse the visa. The Tribunal, constituted by Jennifer Cripps Watts, was required to determine whether the applicant met the primary criteria for the visa, specifically those relating to character requirements and the provision of a police check.

The central legal issue was whether the applicant had satisfied criterion cl.485.216, which requires compliance with PIC 4001, as applied by r.2.03AA. This involved determining whether the applicant had provided the necessary statement from an appropriate authority, such as an Australian Federal Police (AFP) Check, and whether evidence demonstrated that such a check had been applied for within the 12 months preceding the visa application, as required by cl.485.213. The Tribunal also considered whether it was reasonable for the applicant not to provide the correct AFP Check and whether Ministerial intervention was warranted.

The Tribunal reasoned that while the applicant had provided a New South Wales Police Name Check Certificate, this did not satisfy the requirement for an AFP Check as requested by the delegate under r.2.03AA(2)(a). Furthermore, the applicant had not provided evidence that he had applied for an AFP Check within the 12 months immediately before lodging his visa application, a prerequisite under cl.485.213. The Tribunal found that it was not reasonable for the applicant to have failed to provide the correct police check. Despite considering submissions from the applicant's migration agent and the applicant's evidence, the Tribunal concluded that the circumstances did not warrant a referral for Ministerial intervention.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant the Subclass 485 visa. The applicant retained the option to directly request Ministerial intervention from the Department.