Fu (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa, by an applicant identified as Fu. The dispute centred on whether the applicant had satisfied the character test requirements, specifically regulation 2.03AA of the Migration Regulations 1994. The decision was made by Wan Shum, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of regulation 2.03AA(2), which mandates the provision of documentation or information relating to an applicant’s criminal history when requested by the Minister. This regulation was applicable because clause 485.216(1) of the Migration Regulations requires applicants for a Subclass 485 visa to satisfy various Public Interest Criteria (PIC), including PIC 4001. The Department had previously requested an Australian Federal Police (AFP) National Police Certificate from the applicant on multiple occasions, which was not provided before the initial decision.

The Tribunal reasoned that it was able to find in favour of the applicant on the basis of the material before it, without requiring a hearing, pursuant to section 360(2)(a) of the Migration Act 1958. Upon review, the Tribunal was presented with an AFP 'Immigration/Citizenship Australia – name check only' certificate dated 7 June 2022, which confirmed the applicant had no disclosable court outcomes. The Tribunal concluded that this certificate satisfied the criterion in regulation 2.03AA(2)(a), and therefore the applicant met regulation 2.03AA.

Consequently, the Tribunal remitted the matter with a direction that the applicant satisfies regulation 2.03AA. This allows a delegate of the Minister to proceed with assessing whether the applicant meets PIC 4001 and the remaining criteria for the grant of the Subclass 485 visa.