Gustafson (Migration)

This matter concerned an application for a Temporary Work (Long Stay Activity) (Class GB) visa, Subclass 401. The applicant was required to satisfy Public Interest Criterion (PIC) 4001, which necessitates the provision of requested documentation regarding an applicant's criminal history. The primary decision-maker had refused the visa because the applicant had not provided an FBI Certificate as requested, preventing an assessment against PIC 4001. The applicant subsequently appealed this decision to the Tribunal.

The legal issue before the Tribunal was whether the applicant had satisfied the requirements of regulation 2.03AA(2) of the Migration Regulations 1994, which mandates the provision of specific documentation relating to an applicant's criminal history if requested by the Minister. This regulation applies to all current visa applications and requires evidence of whether the applicant has a criminal history from relevant authorities in countries where they have resided for a cumulative period of 12 months or more within the 10 years preceding the visa application.

The Tribunal found that the applicant had resided in the USA, specifically Alaska and Florida, for a total of 12 months or more within the relevant 10-year period. Although the applicant initially failed to provide the requested FBI Certificate to the primary decision-maker, she subsequently provided the Tribunal with an FBI Certificate dated 25 April 2017, a Criminal History Information Certificate from Florida dated 25 August 2017, and an Interested Person Report from Alaska dated 14 September 2017. These documents collectively indicated no prior criminal history for the applicant. The Tribunal concluded that by providing these certificates, the applicant had complied with the requirements of regulation 2.03AA(2)(a).

Consequently, the Tribunal remitted the application for a Subclass 401 visa for reconsideration. The Tribunal directed that the applicant be taken to satisfy regulation 2.03AA(2), allowing the delegate to proceed with assessing PIC 4001 and clause 401.216 of the Migration Regulations 1994.