De Silva Patabadi Maddumage (Migration)

This matter concerned an appeal by the applicant, De Silva Patabadi Maddumage, against the refusal of a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa. The core of the dispute revolved around whether the applicant had satisfied the requirements of clause 485.213 of the Migration Regulations 1994, which mandates that a visa application must be accompanied by evidence of having applied for an Australian Federal Police (AFP) check within the 12 months preceding the application. The case was heard by Amanda Mendes Da Costa, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant's visa application, lodged on 23 August 2017, was "accompanied by" evidence that the applicant had applied for an AFP check during the 12 months immediately before that date. The applicant had indicated in his application that he had not applied for an AFP check in the past 12 months, but later provided an email from the AFP confirming his application for a police check was made on 20 August 2017, three days prior to lodging the visa application. The applicant also submitted that he was not in a good mental state when completing the form and misunderstood the question to mean whether he had *obtained* a police check, rather than *applied* for one.

The Tribunal considered the meaning of "accompanied by" in light of previous case law, specifically *Anand v MIAC* [2013] FCA 1050 and *Nguyen v Minister for Immigration & Anor* [2016] FCCA 1523. These cases established that evidence accompanying an application could be supplied after lodgement, provided there was a temporal connection to the application. The Tribunal accepted the AFP email as genuine, confirming the applicant had applied for the check before lodging his visa application. However, the Tribunal found that the applicant did not satisfy clause 485.213 as the evidence of the AFP check application was not provided at the time of lodgement, nor was it submitted within a sufficiently close temporal proximity to be considered as accompanying the application. Consequently, the Tribunal affirmed the decision not to grant the visa. Nevertheless, given the applicant had applied for the AFP check prior to lodging his application and considering the Minister's discretionary powers under s351, the Tribunal determined the case should be referred to the Department for the Minister's attention.