Hui (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate), brought before the Tribunal by the applicant. The dispute arose because the applicant failed to provide evidence of having applied for an Australian Federal Police (AFP) check at the time of lodging their visa application, as required by the relevant regulations.

The central legal issue before the Tribunal was whether the applicant had 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 preceding the application date. The Tribunal was required to determine if the applicant's subsequent application for an AFP check, made after the visa application was lodged, met this requirement.

The Tribunal, constituted by Denise Connolly, Member, found that the applicant had declared at the time of lodging the visa application that they had not applied for an AFP check in the preceding 12 months. The applicant later explained that they were unsure about the requirement and only applied for the check after lodging their review application. The Tribunal concluded that it had no discretion in this matter and was bound to apply the law as written. As the applicant had not provided evidence of having applied for an AFP check at the time of their visa application, they did not satisfy 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 meet the criteria for its grant.