Chittampally (Migration)

The applicant sought review of a decision not to grant a Skilled (Provisional) (Class VC) visa, subclass 485. The dispute centred on whether the applicant had met the requirements of clause 485.213 of the Migration Regulations 1994, which pertains to Australian Federal Police (AFP) clearance.

The primary legal issue before the Tribunal was to determine if the applicant had satisfied the criteria stipulated in clause 485.213 at the time of their visa application. This clause mandates that an application for a Skilled (Provisional) (Class VC) visa must be accompanied by evidence that the applicant, and any accompanying person aged 16 or over, had applied for an AFP check within the 12 months immediately preceding the application lodgement date.

The Tribunal considered the applicant's submission that they applied for an AFP check on 6 October 2016, which was after the visa application was lodged on 30 August 2016. The applicant conceded this date fell outside the required 12-month period (30 August 2015 to 30 August 2016). The applicant argued for a flexible interpretation of the regulation, citing a lack of disclosable court outcomes on their AFP check, a potential technical oversight in answering an online form question, discrepancies in departmental information, and an unfair outcome. However, the Tribunal found that the applicant's argument regarding the online form's process, which allowed them to proceed and pay after indicating they had not applied for an AFP check, did not alter the clear wording of the regulation. The Tribunal concluded that the applicant did not meet the criteria of clause 485.213.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa, subclass 485, as the applicant failed to satisfy the essential criteria for the visa.