Tham (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate), made by the applicant. The dispute before the Tribunal, presided over by Member Sheridan Aster, centred on whether the applicant had satisfied the requirement under clause 485.213(1) of the Migration Regulations 1994 (Cth) concerning the provision of an Australian Federal Police (AFP) check.

The primary legal issue was to determine whether the AFP Pre-Employment – Standard Disclosure check provided by the applicant with his visa application was sufficient to satisfy the regulatory requirement for "an AFP check" under clause 485.213(1), notwithstanding departmental policy that required a Complete Disclosure Certificate. The Tribunal also considered whether the applicant met the criteria of clause 485.213(1) given he did not hold a Subclass 485 Post Study Work visa at the time of his application.

The Tribunal reasoned that clause 485.213(1) of the Migration Regulations 1994 (Cth) requires evidence that the applicant had applied for "an AFP check" within the 12 months preceding the application. It found that the applicant had indeed applied for and provided an AFP check, specifically a Pre-Employment – Standard Disclosure check, which fell within the relevant timeframe. Citing precedent from *Singh v MICMSMA* [2021] FCCA 905, the Tribunal held that any form of AFP check, not just a Complete Disclosure Certificate as stipulated by departmental policy, was sufficient to satisfy the regulatory requirement.

Consequently, the Tribunal concluded that the applicant met the requirements of clause 485.213 of Schedule 2 to the Regulations. The Tribunal remitted the application for a Skilled (Provisional) (Class VC) visa for reconsideration by the Minister, with the direction that the applicant had satisfied this particular criterion.