KAUR (Migration)

Ms Kaur applied for a subclass 485 Temporary Graduate visa (post-study work stream). The delegate refused her application, finding she did not meet the requirements of clause 485.213 of the regulations, which mandates evidence of an Australian Federal Police (AFP) check applied for within the 12 months preceding the visa application. Ms Kaur appealed this decision to the Tribunal.

The primary legal issue before the Tribunal was whether Ms Kaur satisfied the requirements of clause 485.213, given her declaration that she had not applied for an AFP check in the preceding 12 months. Ms Kaur contended that the visa application process was flawed because it allowed her to proceed with the application despite her answer to this question indicating ineligibility, arguing this constituted a deficiency in the application form itself.

The Tribunal determined that its role was to assess the applicant's eligibility for the visa, not to adjudicate on the fairness or design of the application process. Ms Kaur had declared she had not applied for an AFP check in the relevant period, leading the delegate to correctly conclude she had not met the regulatory requirement. The Tribunal found that the applicant's assertion of a "small mistake" did not alter the factual basis of the delegate's decision, and the possibility of a section 56 request for an AFP check, as mentioned in the Procedure Advice Manual, did not override the explicit requirement for evidence of application at the time of lodgement. The Tribunal affirmed the delegate's decision.