Madahar (Migration)

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, subclass 485, made by an applicant who failed to meet a specific visa criterion. The applicant had lodged the visa application online on 14 February 2017, answering negatively to a question about having applied for an Australian Federal Police (AFP) check in the preceding 12 months and providing no supporting documentation. The Tribunal found that the applicant had not applied for an AFP check within the 12 months immediately before lodging the application, and an AFP check provided later, dated 21 July 2017, did not satisfy the requirement as there was no evidence it was applied for before the visa application date.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 485.213 of the Migration Regulations 1994, which mandates that a visa application must be accompanied by evidence of an application for an Australian Federal Police check made within the 12 months prior to the application date. The Tribunal also considered the applicant's request for a referral to the Minister for Immigration and Border Protection for personal intervention under section 351 of the Migration Act 1958, which allows the Minister to substitute a more favourable decision if it is in the public interest.

The Tribunal reasoned that the applicant failed to meet the mandatory requirement of clause 485.213, as neither of the AFP checks presented satisfied the temporal condition. Regarding the ministerial intervention, the Tribunal noted the Department's guidelines, which suggest it would be inappropriate to refer a matter to the Minister if the person has an ongoing application for a substantive visa. As the applicant had a pending subclass 489 visa application with the Department, the Tribunal concluded that a referral was inappropriate in these circumstances, while acknowledging the applicant's right to make their own referral if they believed their case met the criteria for unique or exceptional circumstances.

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