Shrestha (Migration)

The Administrative Appeals Tribunal considered the applications of the first and second named applicants for Skilled (Provisional) (Class VC) visas, specifically Subclass 485 (Temporary Graduate) visas. The primary dispute concerned whether the applicants had provided sufficient evidence regarding their criminal history, as required by migration regulations. The second applicant's eligibility was contingent on being a member of the family unit of the first applicant.

The central legal issue before the Tribunal was whether the first applicant had satisfied regulation 2.03AA(2) of the Migration Regulations 1994, which mandates the provision of a statement from an appropriate authority in Australia concerning any criminal history. The Tribunal also considered whether a request for a completed Form 80 had been made by the delegate, as this was another potential requirement under regulation 2.03AA(2)(b).

The Tribunal reasoned that the first applicant had indeed provided a statement from an appropriate authority, namely an Immigration/Citizenship Certificate issued by the Australian Federal Police (AFP) dated 22 September 2021. This certificate indicated no disclosable court outcomes against the applicant's name, thereby satisfying regulation 2.03AA(2)(a). The Tribunal noted that there was no evidence that the delegate had requested a Form 80, rendering regulation 2.03AA(2)(b) inapplicable. Consequently, the Tribunal found that the first applicant met the criteria under regulation 2.03AA(2).

The Tribunal remitted the applications for Skilled (Provisional) (Class VC) visas for reconsideration by the Department. It directed that the first named applicant meets the criteria under regulation 2.03AA(2). The Tribunal further determined that the second named applicant's application, being based on being a member of the family unit of the first applicant, would be determined by reference to the outcome of the first applicant's reconsidered application.