SHUVO (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of SHUVO, an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The dispute centred on the applicant's failure to provide evidence of having applied for an Australian Federal Police (AFP) check within the 12 months immediately preceding the date of their visa application, as required by clause 485.213 of the Migration Regulations. The applicant had initially provided a National Police Certificate from NSW Police, which the delegate determined did not satisfy the regulatory requirement.

The primary legal issue before the Tribunal was whether the applicant had satisfied the mandatory requirement under cl.485.213 to have applied for an Australian Federal Police check within the 12 months prior to lodging their visa application. The Tribunal also had to consider whether the applicant's subsequent provision of an AFP check, obtained after receiving a request from the Department, could rectify the initial deficiency, and whether any discretion existed to waive this requirement.

The Tribunal reasoned that while the applicant had obtained an AFP check, the evidence indicated this application was made after the applicant received a letter from the Department, and crucially, not within the 12 months immediately before the visa application was lodged. The Tribunal found no evidence that the applicant had applied for the correct AFP check within the stipulated timeframe. It noted that the applicant's failure to provide the correct documentation stemmed from a misunderstanding of the requirements, mistaking a National Police Check for the mandatory AFP check. The Tribunal concluded that it had no discretion to waive the mandatory criterion in cl.485.213.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa, Subclass 485, as the applicant did not satisfy the visa grant criteria.