Singh v MICMSMA

The applicant, Mr. Singh, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his Temporary Graduate visa application. The core of the dispute concerned whether Mr. Singh had satisfied clause 485.213 of the Migration Regulations 1994, which requires an applicant to provide evidence of having applied for an Australian Federal Police (AFP) check within the 12 months immediately preceding the visa application.

The legal issues before the court were whether the AAT had committed jurisdictional error by misinterpreting clause 485.213 and by making a factual finding not supported by probative evidence. Specifically, the court had to determine if the Tribunal had erred in concluding that Mr. Singh had not applied for an AFP check within the relevant 12-month period, and whether the Tribunal had wrongly imposed a requirement for a "Complete Disclosure Certificate" when the regulation only mandated evidence of an application for an AFP check.

Humphreys J found that clause 485.213 of the Regulations does not define "Australian Federal Police check" as requiring a "Complete Disclosure Certificate." This requirement appeared to be a policy decision outside the Regulations, and for such a specific form to be mandatory, clear words would need to be used in the Regulations. The court agreed with the reasoning in *Panchal* that "accompanied by" refers to evidence provided at the time of lodging the application, not statements within the application itself or evidence added later. The Tribunal had erroneously concluded that the AFP check applied for by Mr. Singh prior to his visa application was not sufficient because it was not a "Complete Disclosure Certificate," despite the evidence showing he had applied for an AFP check on 13 August 2018, the day before lodging his visa application on 14 August 2018.

The court concluded that the Tribunal had misinterpreted clause 485.213 by requiring a specific form of AFP check that was not mandated by the regulation. Consequently, the Tribunal's decision was set aside, and the matter was remitted to the AAT for redetermination according to law.