Hopen (Migration)

This matter concerned an appeal by an applicant for a Skilled (Provisional) (Class VC) visa, subclass 485, against a decision to refuse the visa. The appeal was heard by the Tribunal, with Member Antonio Dronjic presiding. The central dispute revolved around whether the applicant had met the Australian Federal Police (AFP) clearance requirements at the time of lodging her visa application.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied clause 485.213 of the Migration Regulations, which 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 check within the 12 months immediately preceding the day the visa application was made. The Tribunal also considered the interpretation of "accompanied by" in the context of visa applications, referencing previous case law.

The Tribunal acknowledged that while evidence accompanying an application could potentially be supplied after lodgement, there must be a close temporal connection. It noted that in the present case, the applicant conceded that her visa application and AFP clearance application were lodged on the same day, 29 August 2017. Applying the ordinary meaning of the phrase "immediately before the day the visa application was made" as used in clause 485.213, the Tribunal found that lodging both applications on the same day did not satisfy the requirement of having applied for the AFP check *during the 12 months immediately before* the visa application was made. The Tribunal concluded that the applicant did not meet the criteria stipulated in clause 485.213.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa. The Tribunal noted that the applicant might have recourse to apply to the Minister for the exercise of discretion under section 351 of the Migration Act.