Hsu (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, made by the first applicant, with the second applicant seeking reconsideration as a member of the family unit. The dispute centred on whether the applicants had satisfied the character requirements, specifically Public Interest Criterion (PIC) 4001, as mandated by cl.485.216 of Schedule 2 to the Regulations. The delegate had refused the visa on the basis that the applicant had not provided a complete Australian Federal Police (AFP) disclosure certificate.

The legal issue before the Tribunal was whether the AFP 'National Police Certificate, Immigration/Citizenship-Australia Name Check Only' provided by the applicant satisfied the requirements of Regulation 2.03AA(2)(a), which mandates the provision of a statement from an appropriate authority in a country of residence evidencing whether the person has a criminal history. The delegate had determined that only a full AFP 'Complete Disclosure' certificate would suffice, a requirement not explicitly stated in the Regulations.

The Tribunal reasoned that the AFP 'National Police Certificate, Immigration/Citizenship-Australia Name Check Only' was indeed a statement provided by an appropriate authority (the AFP) in Australia, a country where the applicant resided, and that it provided evidence about the applicant's criminal history by confirming no disclosable court outcomes. Consequently, the Tribunal found that the applicant had satisfied cl.485.216. The Tribunal also considered that the second applicant, as a member of the family unit of a person who met the primary criteria, should have their application reconsidered.

The Tribunal remitted the applications for Skilled (Provisional) (Class VC) visas for reconsideration by the Minister, with a direction that the first applicant met the criteria under cl.485.216 of Schedule 2 to the Regulations. The Tribunal further directed that the second applicant's application be reconsidered on the basis of being a family unit member of a primary applicant who met the visa criteria.