Tamang (Migration)

This matter concerned an appeal by the applicant against a decision concerning their application for a Skilled (Provisional) (Class VC) visa, Subclass 485. The central dispute revolved around whether the applicant had satisfied the requirements of clause 485.216(1) of Schedule 2 to the Regulations, which mandates the satisfaction of Public Interest Criterion (PIC) 4001. The delegate had determined that the applicant had failed to meet this criterion, and consequently, the visa application was refused.

The primary legal issue before the Tribunal was to determine whether the applicant had provided sufficient documentation to satisfy PIC 4001, as interpreted through Regulation 2.03AA(2)(a). This regulation requires the provision of a statement from an appropriate authority in a country of residence that evidences whether the person has a criminal history, if such documents are requested by the Minister. The delegate had concluded that the applicant had not provided the correct type of police certificate, specifically an AFP ‘Complete Disclosure’ certificate, and therefore had not met the criterion.

The Tribunal reasoned that the AFP ‘National Police Certificate, Immigration/Citizenship-Australia Name Check Only’ certificates provided by the applicants, which indicated no disclosable court outcomes, constituted statements from an appropriate authority (a police force) in a country of residence that provided evidence about their criminal history. The Tribunal found that these certificates satisfied the requirements of Regulation 2.03AA(2)(a) and that the delegate had erred in requiring a specific ‘Complete Disclosure’ certificate. Consequently, the Tribunal found that the applicant did satisfy clause 485.216(1).

The Tribunal remitted the visa applications for reconsideration by the Minister, with the direction that the first and second named applicants met the criteria under clause 485.216(1) for a Subclass 485 visa. The Tribunal also noted that the second named applicant's application should be reconsidered in light of the findings regarding the first named applicant.