Cokataki (Migration)

The applicant, a New Zealand citizen, sought review of a decision by the Administrative Appeals Tribunal (AAT) to refuse to grant a Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) visa. The applicant's criminal history was a key consideration in the visa application.

The primary legal issue before the Federal Circuit Court was whether the AAT had made a valid decision in accordance with law, specifically concerning the assessment of the applicant's criminal history and the procedural fairness afforded to the applicant. The court was required to determine if the AAT had properly considered all relevant information, including police certificates from both the applicant's home country and Australia, which indicated no criminal history.

Her Honour, Judge Holub, found that the AAT had failed to conduct a proper hearing and had made a decision without adequately considering the evidence presented. The court reasoned that the AAT's reliance on an assumption that a criminal history might exist, despite the absence of any recorded convictions in the provided certificates, amounted to a failure to afford procedural fairness. The AAT was obligated to make its decision based on the evidence before it, and in this instance, the evidence did not support a finding of a criminal history that would preclude the grant of the visa.

Consequently, the Federal Circuit Court remitted the matter back to the Administrative Appeals Tribunal to be heard and determined afresh.