MIGRATION - Skilled (Provisional) (Class VC) visa - Subclass 485 (Temporary Graduate) - criminal history - evidence of applying for an Australian Federal Police check - decision under review remitted

Administrative Review Tribunal Act 2024 (Cth), s 106

Migration Act 1958 (Cth), s 65

Migration Regulations 1994, Schedule 2, cl 485.213

Rahim v MIBP [2018] FCA 1736

Rahim v MIBP [2018] FCCA 1814

Singh v MICMSMA [2021] FCCA 905

Tauqueer v MHA [2019] FCCA 1343

Tauqueer v MICMSMA [2019] FCA 1883

1. This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 12 February 2024. The delegate refused to grant the visas on 6 August 2024.
2. The delegate was not satisfied that, when the visa application was made, it was accompted by evidence that each applicant had applied for an Australian Federal Police check (AFP check) during the 12 months immediately before the day the visa application was made. This was a requirement in cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
3. The applicants applied to the Administrative Appeals Tribunal (the AAT) for merits review of the delegate's decision on 22 August 2024. As the application for review was not determined by 14 October 2024, when the AAT was replaced by the Administrative Review Tribunal (the ART or the Tribunal), the applications fall to be determined by the ART in accordance with the provisions of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act). Reflecting on the circumstances of the application and the relevant provisions of the Migration Act and the ART Act, I am satisfied that this proceeding has continued in a manner that is efficient and fair.
4. In reaching my decision ,I did not consider a hearing to be necessary. The issues in the proceeding could be adequately determined without a hearing, and I am able to find wholly in favour of the applicants on the basis of the material before it, pursuant to s 106(3) of the ART Act.

1. Clause 485.213(1) requires that, when the application was made, it was accompanied by evidence that the applicant, and each person included in the application who is at least 16 years of age, had applied for an AFP check during the 12 months immediately before the day the application is made. An exception in sub-paragraph (2) does not currently apply.
2. The applicants in this case were both at least 16 years of age when the application was made. They were therefore required to provide the relevant evidence.
3. In their visa application form, under the heading 'Australian Federal Police check details', each applicant said that they had applied for an AFP check on 15 November 2023 and each applicant provided a unique reference number.
4. The inclusion of this information in their visa application constitutes 'evidence' that they had each applied for an AFP check during the relevant period.[1]
5. On this basis alone, I am satisfied that their application was accompanied by evidence that they had each applied for an AFP check during the 12 months immediately before the day the visa application was made. Clause 485.213 is therefore met.
6. Perhaps the bigger issue, though, is that the delegate considered that evidence of the wrong type of AFP check had been applied for. This is because the actual AFP check for each applicant that accompanied their application was titled 'Immigration Detention Centre Employment Name Check Only'. They were not the 'Complete Disclosure/Immigration Citizenship Australian Federal Police' clearances that the delegate anticipated would be provided.
7. The first difficulty with that is that cl 458.213 is only concerned with whether the visa application is accompanied by evidence that an AFP check has been applied for in the relevant period. That question is answered by the inclusion of objective evidence in the visa application such as the reference numbers.
8. The second difficulty is that the term 'Australian Federal Police check' means a check issued by the Australian Federal Police.[2] It may be Departmental policy for the AFP check to be in the form of a 'Complete Disclosure Certificate', for example, but cl 485.213 clearly stipulates only 'an Australian Federal Police check'.[3] For this reason, evidence that an applicant had applied for any form of an Australian Federal Police check is sufficient to satisfy cl 485.213.[4]
9. For the reasons above, I am satisfied that cl 485.213 is met. It is appropriate to set the decision aside and remit the visa application for reconsideration.

1. The Tribunal sets aside the decision under review and remits the application for reconsideration, in accordance with the order that the first named applicant meets the following criteria for a Subclass 485 visa:
   • cl 485.213 of Schedule 2 to the Regulations

Representative for the Applicants: Mr Nabin Shahi (MARN: 0957944)

[1] Singh v MICMSMA [2021] FCCA 905 at [37]. The Court considered Panchal v MIAC [2012] FMCA 562; (2012) 265 FLR 144 that 'accompanied by' refers to something other than that which is within the online application form but was of the view that this was to draw a distinction without a difference.

[2] Rahim v MIBP [2018] FCCA 1814; upheld on appeal Rahim v MIBP [2018] FCA 1736. See also Tauqueer v MHA [2019] FCCA 1343; upheld on appeal Tauqueer v MICMSMA [2019] FCA 1883.

[3] Singh v MICMSMA [2021] FCCA 905 at [38].

[4] Singh v MICMSMA [2021] FCCA 905 at [35] and [38].