Mahalingam (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa, subclass 485. The applicant had applied for the visa on 18 August 2018. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the grant of the visa.

The central legal issue before the Tribunal was whether the applicant satisfied clause 485.213 of Schedule 2 to the Migration Regulations 1994. This clause requires that a visa application be accompanied by evidence of having applied for an Australian Federal Police check within the 12 months immediately preceding the date of the application. The applicant had answered "no" to the relevant question on the application form and had not provided details of an Australian Federal Police check with their application.

The Tribunal reasoned that the applicant's Australian Federal Police check, dated 3 October 2018, and the receipt for payment of the fee on 2 October 2018, were both subsequent to the visa application lodged on 18 August 2018. Consequently, the Tribunal found that the visa application was not accompanied by the required evidence of an Australian Federal Police check within the specified timeframe. As this was a mandatory criterion for the grant of the visa, and the applicant had failed to satisfy it, the Tribunal affirmed the delegate's decision to refuse the visa.