CHEPURI (Migration)

This matter concerned an appeal by the applicant, CHEPURI, against a decision relating to their application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The central dispute revolved around whether the applicant had satisfied the requirement to provide evidence of having applied for an Australian Federal Police (AFP) National Police Check within the 12 months immediately preceding their visa application. The case was heard by Bridget Cullen, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant had met the criterion stipulated in Clause 485.213 of Schedule 2 to the Migration Regulations. This clause mandates that a visa application must be accompanied by evidence that the applicant, and any other person included in the application aged 16 or over, had applied for an AFP National Police Check within the 12 months prior to lodging the visa application. The Tribunal also had to consider whether the applicant had provided sufficient evidence of this application and address the applicant's response to a question on the visa application form concerning whether an AFP check had been applied for.

The Tribunal found that the applicant had indeed applied for the AFP National Police Check on 12 April 2017, which fell within the relevant 12-month period preceding the visa application lodged on 17 May 2017. Evidence in the form of a receipt dated 12 April 2017 and the AFP clearance certificate dated 15 May 2017 supported this finding. Crucially, the Tribunal accepted the applicant's oral evidence that their negative response to the question on the visa application form regarding the AFP check application was due to a genuine mistake. The applicant misunderstood the question to mean whether a hardcopy clearance certificate had been issued and could be attached, rather than whether an application had been made. Given that the AFP certificate was issued after the visa application was lodged, the Tribunal was satisfied that the applicant would have answered "Yes" had they understood the question correctly.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant had met the criterion under Clause 485.213.