Nguyen (Migration)

This matter concerned an appeal by an applicant for a Temporary Graduate visa (subclass 485) against the Tribunal's decision to affirm the refusal of his application. The applicant had completed tertiary education in Australia and sought to rely on the Post Study Work stream of the visa.

The primary legal issue before the Tribunal was whether the applicant had satisfied 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 accompanying persons aged 16 or over, had applied for an Australian Federal Police (AFP) check within the 12 months immediately preceding the date of application.

The Tribunal found that the applicant lodged his visa application on 6 March 2017, answering "no" to having applied for an AFP check in the preceding 12 months and providing no documentary evidence of such an application. While the applicant applied for an AFP check on 7 March 2017 and received clearance on 9 March 2017, these actions occurred after the visa application was lodged. The Tribunal accepted the applicant's submission that the online application process was misleading and that his failure to provide the AFP check evidence at the time of lodgment was an inadvertent misunderstanding. However, applying the plain wording of clause 485.213 and referencing the reasoning in *Panchal v Minister for Immigration* [2012] FMCA 562, the Tribunal concluded that the requirement for the application to be "accompanied by evidence" was not met.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa, as he failed to satisfy the mandatory criteria for the subclass 485 visa.