Ng (Migration)

The Administrative Appeals Tribunal (AAT) considered a dispute concerning a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate), between the applicant and the Department of Home Affairs. The core of the disagreement revolved around the applicant's compliance with the Australian Federal Police (AFP) check requirements for the visa.

The legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 485.213 of Schedule 2 to the Migration Regulations 1994. This clause mandates that a visa applicant must provide evidence of having applied for an AFP check within the 12 months immediately preceding the visa application date. The applicant had submitted a "Standard Disclosure" Police Certificate, while the Department had required a "Complete Disclosure" National Police Certificate.

The Tribunal reasoned that clause 485.213 did not specify that the AFP check must be a "complete disclosure" check, nor did it prohibit the use of a "standard disclosure" check. The applicant had indeed applied for a criminal record check within the relevant 12-month period before lodging the visa application. Therefore, the Tribunal found that the applicant met the criteria stipulated in clause 485.213. Consequently, the Tribunal remitted the application for the Skilled (Provisional) (Class VC) visa back to the Minister for reconsideration, with a direction that the applicant satisfied the AFP check requirement.