McColl (Migration)

This matter concerned an application for review of a decision to refuse a Skilled (Provisional) (Class VC) visa, Subclass 485. The applicant sought to challenge the decision of the delegate, which was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met 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 or over, had applied for an Australian Federal Police (AFP) check within the 12 months preceding the application date.

The Tribunal reasoned that the applicant's visa application form indicated that neither the applicant nor his spouse had applied for an AFP check within the relevant period, and no such evidence was provided at the time of application. While the applicant later provided AFP checks obtained after the application was lodged and submitted that he had relied on advice from the Department, the Tribunal found that it had no discretion to waive the mandatory requirements of clause 485.213. The Tribunal concluded that the evidence clearly showed the applicant and his spouse had not applied for the AFP checks within the prescribed 12-month period, nor had evidence of such applications been provided with the initial visa application.

Consequently, the Tribunal affirmed the delegate's decision not to grant the Skilled (Provisional) (Class VC) visas.