Ito (Migration)

The Administrative Appeals Tribunal considered an application for a Temporary Activity visa (Subclass 408) made by the applicant, Ito. The dispute arose because the Department initially found that the applicant had breached Public Interest Criterion 4001, as the police clearance provided was not considered sufficient to demonstrate the absence of a criminal history.

The primary legal issue before the Tribunal was whether the applicant had provided a statement from an appropriate authority that adequately evidenced whether or not she had a criminal history, as required by Regulation 2.03AA(2)(a) and clause 408.216 of the Migration Regulations 1994. The Tribunal had to determine if the various police certificates submitted by the applicant satisfied this requirement.

The Tribunal reasoned that while an initial AFP Standard Disclosure Certificate was deemed insufficient by the delegate, the applicant subsequently provided an AFP Complete Disclosure Certificate dated 16 May 2019, which stated she had no disclosable court outcomes. Further, a Certificate of Criminal Record from the Japanese National Police Agency confirmed no applicable criminal record. A more recent AFP Complete Disclosure Certificate dated 7 August 2020 also confirmed no disclosable court outcomes. Based on this evidence, the Tribunal concluded that the applicant had provided the required statement from an appropriate authority and therefore met Regulation 2.03AA(2)(a).

Consequently, the Tribunal remitted the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the criteria under Regulation 2.03AA(2)(a) for a Subclass 408 visa.