Barboza (Migration)

The applicant, Mr. Barboza, sought review of a delegate's decision to refuse his application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The dispute centred on whether Mr. Barboza had satisfied the requirements of clause 485.216(1) of Schedule 2 to the Regulations, which mandates satisfaction of Public Interest Criterion (PIC) 4001. This criterion, in turn, engaged Regulation 2.03AA(2)(a), requiring the provision of a statement from an appropriate authority regarding criminal history.

The primary legal issue before the Tribunal was whether the applicant had provided the necessary documentation to satisfy Regulation 2.03AA(2)(a). The delegate had determined that an AFP ‘Complete Disclosure’ certificate was required and that the applicant had failed to provide this, despite submitting a receipt for an AFP police certificate application. The applicant subsequently provided the Tribunal with an AFP ‘National Police Certificate, Immigration/Citizenship-Australia Name Check Only’, which indicated no disclosable court outcomes.

The Tribunal reasoned that the AFP certificate provided by the applicant constituted a statement from an appropriate authority, namely a police force, in Australia where he resided, evidencing his criminal history. It concluded that an AFP ‘Complete Disclosure’ certificate was not a mandatory requirement to satisfy Regulation 2.03AA(2)(a). Therefore, the Tribunal found that the applicant had satisfied clause 485.216(1).

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets the criteria under clause 485.216(1) of Schedule 2 to the Regulations.