Monthy (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, subclass 485, brought before the Tribunal by the applicant and a secondary applicant. The primary dispute revolved around whether the applicant met the criteria stipulated in clause 485.213 of the Migration Regulations 1994, which pertains to Australian Federal Police clearance.

The central legal issue before the Tribunal was whether the applicant had satisfied the requirement under clause 485.213 that, at the time of application, evidence of having applied for an Australian Federal Police Check within the preceding 12 months had been provided. The applicant also raised a question of procedural fairness, arguing that the Department should have afforded her an opportunity to provide the required police check before refusing her application.

The Tribunal reasoned that the applicant had not met the "time of application" criteria as required by clause 485.213. The Australian Federal Police Check provided was dated after the visa refusal and thus outside the relevant 12-month period. The applicant acknowledged this failure and conceded that she did not meet the clause. While the applicant argued for a procedural fairness obligation on the Department to allow her to rectify the omission, the Tribunal found no legislative requirement for the Department to contact an applicant in such circumstances. The Tribunal noted that the applicant's failure to meet the primary criteria meant the secondary applicant, her daughter, also failed to meet the criteria for the visa.

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