BIERNACKI (Migration)

The Administrative Appeals Tribunal considered a decision concerning an applicant for a Student (Temporary) (Class TU) visa, subclass 500. The core of the dispute revolved around whether the applicant had satisfied public interest criterion 4001, which requires evidence of whether a person has a criminal history. The delegate of the Minister had requested a current police clearance certificate from Poland, as a previous document from 2015 was deemed insufficient.

The primary legal issue before the Tribunal was whether the applicant had provided a statement from an appropriate authority that adequately addressed their criminal history. The Tribunal was required to determine if the applicant had met the requirements of regulation 2.03AA(2)(a) of the Migration Regulations 1994, and if not, whether a waiver under regulation 2.03AA(3) was applicable. This involved assessing the reasonableness of the applicant's inability to obtain the required document and considering whether the applicant was actively avoiding its procurement.

The Tribunal found that the applicant had not provided the requested statement from an appropriate authority, thus failing to meet regulation 2.03AA(2)(a). While the applicant claimed to have engaged a lawyer in Poland and cited difficulties with court shutdowns and the Polish judicial system, the Tribunal noted that the applicant had not attempted to obtain the certificate personally, despite having done so previously without being in Poland. The Tribunal also highlighted that information readily available online indicated straightforward procedures for obtaining Polish police clearances. The Tribunal concluded that the applicant's actions suggested an avoidance of obtaining the necessary police certificate.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Student (Temporary) (Class TU) visa.