Tran (Migration)

This matter concerned an appeal by the applicant, Mr. Tran, against a decision to refuse him a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The core of the dispute revolved around whether the applicant had satisfied a specific evidentiary requirement for the visa.

The legal issue before the Tribunal was whether the applicant's visa application was "accompanied by" evidence that he had applied for an Australian Federal Police (AFP) check within the 12 months immediately preceding the application date, as required by Clause 485.213 of the Migration Regulations. While the applicant had indeed applied for an AFP check shortly before lodging his visa application, the evidence of this application was not submitted at the time the visa was lodged.

The Tribunal considered the meaning of "accompanied by" in light of previous Federal Court decisions, specifically *Anand v MIAC* [2013] FCA 1050 and *Nguyen v Minister for Immigration & Anor* [2016] FCCA 1523. These cases established that while evidence could potentially be supplied shortly after lodging an application, there must be a close temporal connection. The Tribunal found that the applicant's evidence of applying for the AFP check, submitted some five months after the visa application and two days after the initial decision, was too remote to satisfy the requirement of accompanying the application. Consequently, the Tribunal affirmed the decision not to grant the visa. However, noting the applicant's circumstances and the timing of his AFP check application, the Tribunal recommended that the case be referred to the Department for consideration under the Minister's discretionary power.