Maharjan (Migration)

The Administrative Appeals Tribunal reviewed a decision to refuse a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate), to the applicant, Ms. Maharjan, and a secondary applicant. The core of the dispute concerned the applicant's failure to provide an Australian Federal Police (AFP) Check as requested by the Department, instead submitting NSW Police Force National Police Certificates.

The legal issue before the Tribunal was whether the applicant had satisfied the requirement under regulation 2.03AA(2)(a) of the Migration Regulations 1994 to provide a statement from an appropriate authority regarding her criminal history, specifically an AFP Check. The Tribunal also considered whether it would be unreasonable for the applicant to provide the required AFP Check, and if so, whether that requirement should be waived, pursuant to regulation 2.03AA(3).

The Tribunal reasoned that the applicant had not provided the correct document, as the Department had explicitly requested an AFP Check and provided instructions on how to obtain one. While the applicant later claimed ignorance of different police check types, the Tribunal found this insufficient to excuse her failure to comply with the clear request, especially given the information provided by the Department. The Tribunal concluded that it was not unreasonable for the applicant to provide the AFP Check and therefore did not waive the requirement. Consequently, the Tribunal affirmed the decision to refuse the visa to the applicant and, by extension, the secondary applicant, as no evidence was presented to show they met the secondary criteria.