Waraich (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision regarding an application for a Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate). The applicant sought review of a decision that had refused to grant the visa.

The Tribunal was required to determine whether the applicant had satisfied the requirements of clause 485.213 and clause 485.216(1) of Schedule 2 to the Migration Regulations 1994, in relation to providing evidence of an Australian Federal Police (AFP) check and satisfying the character test under Public Interest Criterion 4001. Specifically, the Tribunal needed to assess whether the applicant had provided sufficient evidence of having applied for an AFP clearance and whether the delegate had properly assessed the applicant's character.

The Tribunal found that the applicant had provided evidence of having applied for an AFP clearance and that a subsequent clearance issued on 9 March 2017 indicated no criminal history. This satisfied clause 485.213 and regulation 2.03AA(2)(a). However, the Tribunal noted that there was no evidence that the delegate had conducted a full character test assessment under section 501 of the Migration Act 1958 or made a finding that the applicant failed to satisfy PIC 4001. It appeared the delegate had incorrectly concluded the applicant could not meet clause 485.216 due to the absence of an AFP clearance at the time of the delegate's decision.

Consequently, the Tribunal remitted the application to the Minister for reconsideration, directing that the applicant met the criteria under clause 485.213 and regulation 2.03AA(2)(a), leaving the assessment of the remainder of PIC 4001 and clause 485.216 to the Department.