BRAHMBHATT (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, subclass 485, before the Tribunal. The applicant sought review of a decision that had refused to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied Public Interest Criterion (PIC) 4001, which requires an applicant to pass the character test as defined in section 501 of the Migration Act 1958 (Cth). This criterion, in turn, necessitates the provision of a statement from an appropriate authority in a country of residence evidencing whether the person has a criminal history, as per regulation 2.03AA(2)(a).

The Tribunal found that the delegate's decision appeared to have been based on the applicant's failure to provide an Australian Federal Police (AFP) clearance at the time of the delegate's decision, rather than a full character assessment. As the applicant had since provided an AFP clearance dated 29 March 2017, which indicated no criminal history, the Tribunal determined that the applicant met the requirements of regulation 2.03AA(2)(a). Consequently, the Tribunal remitted the application to the Minister for reconsideration, with a direction that the applicant satisfied this specific criterion, allowing the Department to assess the remaining aspects of PIC 4001 and clause 485.216.