ADHIKARI (Migration)

The Administrative Appeals Tribunal considered the applications of two individuals for Skilled (Provisional) (Class VC) visas, specifically Subclass 485 (Temporary Graduate) visas. The primary dispute concerned whether the first applicant had satisfied the character test requirements by providing a statement from an appropriate authority regarding their criminal history. The Department had initially refused the application because the requested Australian Federal Police (AFP) clearance was not provided within the stipulated timeframe.

The legal issue before the Tribunal was whether the first applicant had provided a statement from an appropriate authority that evidenced whether or not they had a criminal history, as required by regulation 2.03AA(2)(a) of the Migration Regulations. The Tribunal also considered the refusal of the second applicant's application, which was based on her not being a member of the family unit of the first applicant.

The Tribunal reasoned that while the AFP clearance was initially not provided, the first applicant subsequently submitted an AFP Complete Disclosure certificate issued on 18 September 2019, which indicated no disclosable outcomes. The Tribunal found that this certificate constituted the required statement from an appropriate authority, thereby satisfying regulation 2.03AA(2)(a). Consequently, the Tribunal determined that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Skilled (Provisional) (Class VC) visas for reconsideration. It directed that the first applicant met the criteria under regulation 2.03AA(2)(a). The Tribunal also noted that upon remittal and based on the outcome of the first applicant's visa application, the Department would reconsider the second applicant's eligibility for the visa.