Khatiwada (Migration)

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa, made by Mr. Khatiwada and his spouse. The dispute concerned the validity of an Australian Federal Police (AFP) National Police Check provided by the applicants, specifically whether a "Partial Disclosure National Police Certificate" was sufficient or if a "Complete Disclosure AFP National Police Check" was required. The decision was made by Member Lilly Mojsin.

The primary legal issue before the Tribunal was to determine whether the applicants satisfied the criteria for the visa, particularly concerning the requirement for an Australian Federal Police check under the Migration Regulations 1994. This involved interpreting the meaning and effect of the different types of AFP National Police Checks and their relevance to the specific visa subclass and the applicable Public Interest Criteria (PIC).

The Tribunal reasoned that the applicants had provided a "Partial Disclosure National Police Certificate" which, in the context of the relevant legislation and the specific circumstances of the application, was sufficient to satisfy PIC 4001 for the purposes of clause 485.216(a) of the Migration Regulations. The Tribunal found that there was no discernible basis to conclude that a "Complete Disclosure AFP National Police Check" was mandated in this instance.

Consequently, the Tribunal remitted the visa application to the Minister with a direction that the first named applicant satisfies PIC 4001 for the purposes of cl.485.216(a). The Minister was directed to consider the remaining criteria for the visa application.