Hausner (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, made by the applicant, Ms Hausner. The primary dispute before the Tribunal was whether the applicant met the mandatory requirement under clause 485.213 of the Migration Regulations 1994, which stipulated that an applicant must have applied for an Australian Federal Police (AFP) check within the 12 months immediately preceding the day of application. The applicant had lodged her visa application on 21 July 2017, at which time she declared she had not applied for an AFP check in the preceding 12 months. Although she subsequently obtained an AFP National Police Certificate dated 16 August 2017, this was after the visa application was lodged.

The legal issue before the Tribunal was to determine whether the applicant satisfied clause 485.213 of the Migration Regulations 1994, given that her AFP check application was made after, rather than before, her visa application. The Tribunal was required to assess whether the visa application was accompanied by the requisite evidence of an AFP check application within the specified timeframe.

The Tribunal reasoned that the applicant had explicitly acknowledged not meeting the AFP check requirement at the time of her visa application and confirmed this understanding at the hearing. Despite the online application system allowing the application to proceed, the Tribunal found that the applicant had not satisfied clause 485.213. Consequently, the applicant did not meet the criteria for the grant of a Subclass 485 visa. However, the Tribunal also considered the applicant's significant role in a major biodiversity project, noting her expertise and the exceptional economic and scientific benefit her continued presence in Australia would provide. Based on these exceptional circumstances, the Tribunal decided to recommend that the Minister consider intervening in the applicant's case.

Despite the recommendation for ministerial intervention, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa, Subclass 485, as the mandatory regulatory requirement had not been met.