Chan (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, made by the applicant, Chan. The dispute arose from the applicant's failure to satisfy a public interest criterion related to her criminal history, specifically PIC 4001, as required by regulation 2.03AA of the Migration Regulations 1994. The decision was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of regulation 2.03AA(2)(a), which mandates the provision of a statement from an appropriate authority regarding an applicant's criminal history when requested. This regulation is a codification of a longstanding administrative practice to assess an applicant's suitability under PIC 4001. The Tribunal also considered the definition of an "appropriate authority" for the purposes of this regulation, particularly in the Australian context.

The Tribunal reasoned that the Australian Federal Police (AFP) is an appropriate authority for providing a statement about an applicant's criminal history in Australia, as contemplated by regulation 2.03AA(2)(a). It accepted that the applicant had been requested to provide such a statement. The Tribunal noted that a failure to provide the requested evidence under this regulation would ordinarily lead to a refusal of the visa application, as it is not open to find that an applicant satisfies PIC 4001 despite such a failure. However, in this instance, the Tribunal concluded that the applicant had met the criterion under regulation 2.03AA(2)(a) for the purposes of clause 485.216(3) of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets the criterion specified in PIC 4001, regulation 2.03AA(2)(a). The Minister was to consider the remaining criteria for the Subclass 485 visa.