Sahay (Migration)

This matter concerned an appeal by Mr. Sahay and his wife regarding their applications for Skilled (Provisional) (Class VC) visas, Subclass 485 (Temporary Graduate). The primary issue before the Tribunal was whether the applicants had satisfied the requirement under clause 485.213(1) of Schedule 2 to the Migration Regulations 1994 (Cth) to provide evidence of having applied for an Australian Federal Police check within the 12 months preceding their visa application.

The Tribunal was required to determine if the provision of an "Overseas Employment – General Employment Australian Federal Police check" was sufficient to meet the regulatory requirement for "an Australian Federal Police check," notwithstanding departmental policy that mandated a "Complete Disclosure Certificate." Additionally, the Tribunal considered the eligibility of the second applicant, Mrs. Sahay, as a member of the family unit.

The Tribunal reasoned that clause 485.213(1) of the Regulations only required evidence of an application for "an Australian Federal Police check" and did not specify the type of check. Citing precedent, the Tribunal held that any form of Australian Federal Police check was sufficient to satisfy this requirement. Therefore, the provision of the Overseas Employment – General Employment Australian Federal Police checks by the applicants met the criteria of clause 485.213(1). The Tribunal also noted that the second applicant's refusal was based on not meeting the criteria for a family unit member under clause 485.311.

Consequently, the Tribunal remitted the applications for reconsideration. It directed that the first applicant, Mr. Sahay, was found to meet the requirements of clause 485.213. The second applicant's eligibility as a family unit member would be reconsidered alongside the primary applicant's application.