Sobti (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, subclass 485, made by the applicant. The delegate refused to grant the visa on the basis that the applicant had failed to provide a requested Australian Federal Police National Police Certificate within the specified timeframe, thereby not satisfying regulation 2.03AA(2)(a) of the Migration Regulations 1994 (Cth). The applicant subsequently lodged an application for review of this decision with the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied regulation 2.03AA(2)(a), which requires an applicant to provide a statement from a relevant authority demonstrating whether or not they have a criminal history, if requested. The Tribunal was required to determine if the provision of an Australian Federal Police National Police Certificate, albeit after the delegate's requested timeframe, met this regulatory requirement.

The Tribunal reasoned that the core of regulation 2.03AA(2)(a) was the provision of a statement from an appropriate authority regarding criminal history, rather than the applicant's actual criminal history itself. Although the applicant had failed to provide the certificate to the delegate within the initial 28-day period, they had since provided an Australian Federal Police National Police Certificate dated 12 September 2024 to the Tribunal. The Tribunal concluded that this certificate satisfied the requirement of regulation 2.03AA(2)(a).

Consequently, the Tribunal set aside the delegate's decision of 7 August 2024 and remitted the visa application back to the delegate for reconsideration. The Tribunal directed that for the purpose of reconsideration, the applicant was to be considered as meeting the criteria under regulation 2.03AA(2)(a) for the Subclass 485 visa.