Madziyire (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled (Provisional) (Class VC) visa, Subclass 485. The dispute centred on whether the applicant had satisfied a specific regulatory requirement concerning the disclosure of criminal history. The Tribunal was able to make its decision based on the material before it, without requiring a hearing.

The primary legal issue before the Tribunal was whether the applicant met the requirements of regulation 2.03AA of the Migration Regulations 1994. This regulation imposes additional criteria when an applicant is required to satisfy Public Interest Criterion 4001, which mandates the provision of requested documentation or information relating to an applicant’s criminal history. Specifically, the Tribunal had to determine if the applicant had provided a statement from an appropriate authority regarding their criminal history and a completed approved form 80, as stipulated by regulation 2.03AA(2).

The Tribunal reasoned that while the applicant had initially provided an Australian Federal Police clearance certificate that was over 12 months old, and had failed to provide a more recent one when requested by the Department, a current National Police Certificate dated 22 March 2018 had been provided to the Tribunal. This certificate indicated no disclosable court outcomes. Consequently, the Tribunal found that the applicant had complied with the request for an AFP certificate, thereby satisfying regulation 2.03AA(2)(a). The Tribunal noted that the delegate's previous decision, which found the applicant did not meet clause 485.216 due to the insufficient police certificate, was now superseded.

The Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant satisfies regulation 2.03AA. The Minister was directed to proceed with assessing whether the applicant meets clause 485.216 and any other remaining criteria for the grant of the Subclass 485 visa.