JINDEL (Migration)

This matter concerned an appeal by an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate), against the decision of the Department of Home Affairs to refuse the visa. The appeal was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of Clause 485.213 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the visa application, when it was "made," was accompanied by evidence that the applicant had applied for an Australian Federal Police (AFP) check within the 12 months immediately preceding the application.

The Tribunal considered the distinction between "making" an application and "lodging" an application. It found that an application is "made" when it is lodged and the appropriate fee is tendered. In this instance, the application was lodged on 12 March 2019. However, the Tribunal noted that at the time of lodgement, the applicant answered "No" to a question about having applied for an AFP check in the last 12 months and provided no details for an AFP check. While the applicant later obtained a National Police Certificate on 9 April 2019, there was no objective evidence that this certificate was submitted before the delegate's decision on 13 May 2019, and departmental systems did not show its existence. The Tribunal concluded that Section 55 of the Migration Act 1958, which allows for the provision of additional information, did not override the prescriptive nature of Clause 485.213.

Consequently, the Tribunal was not satisfied that the applicant met the criteria for the grant of the visa at the time the application was made. The Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa.