Yangchen (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision by a delegate of the Minister to refuse to grant a Skilled (Provisional) (Class VC) visa, Subclass 485, to Ms Yeshi Yangchen and, consequently, to refuse a visa to Mr Jigme Wangda as a member of her family unit. The refusal was based on the delegate's finding that Ms Yangchen had failed to satisfy regulation 2.03AA(2)(a) of the Migration Regulations 1994 (Cth) by not providing a statement from an appropriate authority in Australia regarding her criminal history.

The primary legal issue before the Tribunal was whether Ms Yangchen had satisfied the requirement to provide a statement from a relevant authority demonstrating whether or not she had a criminal history in Australia, as mandated by regulation 2.03AA(2)(a) in conjunction with clause 485.213 of Schedule 2 to the Migration Regulations. A secondary issue concerned Mr Wangda's eligibility as a family member, which was contingent on Ms Yangchen being granted the visa.

The Tribunal reasoned that an Australian Federal Police National Police Certificate, dated 10 August 2024, which was provided to the Tribunal, constituted a statement from an appropriate authority demonstrating that Ms Yangchen had no disclosable court outcomes recorded against her name. Although this certificate was not provided to the delegate at the time of the initial request, the Tribunal found that its production satisfied the criterion in regulation 2.03AA(2)(a). Consequently, the Tribunal set aside the delegate's decision to refuse Ms Yangchen's visa and remitted the application back to the delegate for reconsideration, with a direction that she met the criterion under regulation 2.03AA(2)(a). The Tribunal also set aside the decision to refuse Mr Wangda's visa and remitted his application for reconsideration, noting his eligibility as a family member would depend on Ms Yangchen being granted her visa.