Mutangiri (Migration)

The applicant, Ms. Mutangiri, sought review of a decision to refuse her application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The dispute centred on whether the applicant had met the requirements of clause 485.213 of the Migration Regulations 1994, which mandates that evidence of an application for an Australian Federal Police (AFP) check must accompany the visa application. The applicant had indicated "No" to having applied for an AFP check at the time of lodging her application. The decision was reviewed by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant had satisfied clause 485.213 of the Migration Regulations. This required the Tribunal to ascertain whether evidence that the applicant had applied for an AFP check was lodged with her visa application, as opposed to applying for the check after the application was submitted. The Tribunal also considered whether the circumstances warranted a referral of the matter to the Minister.

The Tribunal reasoned that while an applicant is not required to provide the AFP check itself with the visa application, evidence of having applied for one is a mandatory requirement for meeting clause 485.213. The applicant admitted that she answered "No" to the question regarding applying for an AFP check and confirmed that she applied for the AFP check after lodging her visa application. Although the applicant provided an AFP check dated 2 May 2019, which showed no disclosable outcomes, this evidence was obtained after the visa application was lodged and refused. The Tribunal found that the applicant's submissions regarding a genuine mistake and her current employment as a certified chemical engineer in a remote regional mine did not alter the fact that the regulatory requirement for lodging evidence of the AFP check application with the visa application had not been met.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa, as she did not satisfy the criteria for the grant of the visa.