Gohil (Migration)

The Administrative Appeals Tribunal considered the case of Gohil, involving an applicant seeking a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The core dispute revolved around the applicant's failure to meet a specific visa requirement at the time of application.

The primary legal issue before the Tribunal was whether the applicant had satisfied clause 485.213 of the Migration Regulations 1994. This clause mandates that when a visa application is made, it must be accompanied by evidence that the applicant, and any accompanying person aged 16 or over, had applied for an Australian Federal Police (AFP) check within the 12 months preceding the application date.

The Tribunal reasoned that the applicant had declared at the time of lodging her visa application on 26 September 2017 that she had not applied for AFP checks in the preceding 12 months. While the applicant later provided AFP National Police Certificates dated 18 April 2018, these were obtained after the visa application was made and after a review application was lodged. The Tribunal noted that the applicant's representative argued this was an innocent mistake due to a lack of professional advice and understanding of the requirements. However, the Tribunal explained that its power was limited to making decisions in accordance with the law, and clause 485.213 required evidence of the AFP check application at the time of the initial visa lodgement. The Tribunal acknowledged the frustration caused by the online application system allowing progress despite this omission but concluded it had no discretion to waive the unmet criterion.

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