Khan (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, subclass 485, made by the applicant. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met the criteria for the grant of this visa.

The central legal issue before the Tribunal was whether the applicant had complied with clause 485.213 of the Migration Regulations 1994. This clause mandates that an applicant for a subclass 485 visa must provide evidence that they, and any accompanying applicant aged 16 or over, had applied for an Australian Federal Police (AFP) check within the 12 months immediately preceding the date of the visa application.

The Tribunal found that the applicant lodged his visa application on 14 March 2017 and indicated he had not applied for an AFP check in the preceding 12 months, nor did he provide any supporting documentation. Although the applicant later provided an AFP check issued on 8 May 2017, the Tribunal determined there was no evidence this application was made within the required 12-month period before his visa application. The Tribunal acknowledged the applicant's belief, based on advice from his agent, that the AFP check could be provided post-lodgement and that other applicants might have been granted visas in similar circumstances. However, the Tribunal held that it was bound by the clear wording of clause 485.213 and could not waive or overlook the requirement, irrespective of departmental practice or agent advice.

Consequently, the Tribunal concluded that the applicant failed to satisfy the criteria for the grant of the subclass 485 visa. The decision under review, which affirmed the refusal of the visa, was therefore affirmed.