Lam (Migration)

This matter concerned an application for review of a decision to refuse a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate), made by the applicant. The review was heard by K. Chapman of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had complied with the requirements of Clause 485.213 of the Migration Regulations 1994. This clause mandates that a visa application must be accompanied by evidence that the applicant, and any other person included in the application aged 16 years 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 had not applied for an AFP check within the 12 months prior to lodging his visa application, a fact confirmed by both his oral evidence and his response to a question on the visa application form. While the applicant provided reasons for this non-compliance, including confusion regarding departmental website information and difficulties with the AFP website while offshore, the Tribunal noted that these circumstances did not alter the regulatory requirement. The Tribunal accepted evidence of the applicant's good character and his good faith in applying for the visa, but these factors did not override the specific evidentiary requirement of Clause 485.213.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 485 visa. The Tribunal also noted that the applicant might consider seeking Ministerial Intervention in his case.