Ande (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate), by the applicant, Ande. The dispute centred on whether the applicant had satisfied the character requirements, specifically Public Interest Criterion (PIC) 4001, as mandated by regulation 2.03AA of the Migration Regulations 1994 (Cth). The decision was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had provided the requisite police clearances to satisfy regulation 2.03AA(2)(a) of the Regulations, which requires evidence of a criminal history from a relevant authority. A secondary issue arose concerning clause 485.213, which requires evidence of an application for an Australian Federal Police check within the 12 months preceding the visa application. The Tribunal also considered whether departmental policy requiring a "Complete Disclosure Certificate" for AFP checks was consistent with the wording of the relevant clauses.

The Tribunal reasoned that while the Department had initially found the provided AFP checks insufficient, the applicant had subsequently submitted an AFP Immigration/Citizenship check issued on 2 November 2021, in his full name, which indicated no disclosable outcomes. The Tribunal was satisfied that this new evidence met the requirements of regulation 2.03AA(2)(a). Furthermore, referencing the Federal Circuit Court decision in *Singh v MICMSMA* [2021] FCCA 905, the Tribunal noted that clause 485.213 refers to an "Australian Federal Police check" generally, not a specific type of certificate, suggesting that evidence of an application for a standard disclosure check within the preceding 12 months would suffice.

Accordingly, the Tribunal remitted the application for reconsideration of the remaining criteria for a subclass 485 visa, with a direction that the applicant met regulation 2.03AA(2) in relation to PIC 4001 for the purposes of clause 485.216.