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File number: 1709570

Tribunal: Member Alison Mercer

The applicant’s visa was refused by a delegate of the Minister for Immigration and Border Protection. On 11 January 2018 the Administrative Appeals Tribunal affirmed the decision.  

The applicant applied for a subclass 485 visa but was refused because he failed to attach an AFP criminal check.  485.213 of Schedule 2 to the Migration Regulations 1994 requires that the applicant’s visa application must, when it was made, have been accompanied by evidence that he had applied for an AFP check during the 12 months immediately before the date on which the visa application was made. After the application was made, the applicant applied for and was issued an AFP check which indicated he had no criminal record in Australia.

The applicant claimed he failed to appreciate that he was required to apply for the AFP check in the 12 months before making the visa application because he could click ‘no’ in his online application and continue to complete the application without attaching the compulsory AFP check. He was dismayed that such a seemingly technical oversight could derail his visa application.

The applicant also claimed, with reliance on the case Anand v Minister for Immigration and Citizenship, that because the AFP check receipt was provided the day after the application, the check could be regarded as having ‘accompanied’ the application because it was so close in time. However, the Tribunal noted that the crucial issue was that cl.485.213 specifically notes the check must be done in the “12 months immediately before” the application. The applicable law did not give the Tribunal any power to waive or overlook the clear wording of the clause. It was clear the applicant had not applied for the AFP check in the 12 months leading up to the application.

The Tribunal accepted that the discrepancy between the strict and prescriptive wording of cl.485.213 and the more generalised information in the online application form and the Department's website about the AFP check led to unfair or unreasonable results. However, the Tribunal considered that this was not enough to refer the matter for Ministerial intervention. The Tribunal noted that it remained open to the applicant and his agent to raise this in seeking Ministerial intervention directly.

Based on the above reasoning the Tribunal affirmed the decision to refuse the applicant’s visa.