Lau (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision not to grant a Skilled (Provisional) (Class VC) visa, subclass 485. The central dispute concerned whether the applicant had complied with a specific visa requirement relating to Australian Federal Police (AFP) checks.

The primary legal issue before the Tribunal was to determine whether the applicant had satisfied 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 or over, had applied for an 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 22 February 2017, answering "no" to having applied for an AFP check in the preceding 12 months and providing no documentary evidence to that effect. The applicant conceded he had not applied for an AFP check in the relevant period. While the applicant later provided a National Police check issued by the West Australian Police on 17 March 2017, the Tribunal determined this did not constitute an AFP check as required by the regulation and, crucially, did not "accompany" the visa application. Relying on precedent, the Tribunal held that "accompanied by evidence" implies the evidence should be submitted with or at the same time as the application, or at least within a reasonably short period thereafter, and that evidence submitted five months after the application was lodged did not meet this requirement.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa.