Marshall (Migration)

This matter concerned an application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa, Subclass 461, made by the applicant, a New Zealand citizen. The Department had refused the visa application on the basis that the applicant had failed to satisfy Public Interest Criterion (PIC) 4001, specifically by not providing an Australian National Police Certificate. The Administrative Appeals Tribunal (AAT) reviewed this decision.

The primary legal issue before the AAT was whether the applicant satisfied the character test as required by PIC 4001, and consequently, the additional criteria prescribed by regulation 2.03AA of the Migration Regulations 1994. Regulation 2.03AA mandates the provision of certain documents, including a statement from an appropriate authority regarding criminal history and a completed Form 80, unless waived by the Minister. The Department's refusal was based on the applicant's failure to provide an Australian police certificate.

The AAT reasoned that while regulation 2.03AA requires specific documentation, the Minister has the discretion to waive the requirement for a statement from an appropriate authority if it is not reasonable for the applicant to provide it. The Tribunal noted that the applicant had provided an Australian National Police Certificate dated 1 March 2022, which certified no disclosable court outcomes. Furthermore, there was no evidence before the Tribunal to suggest the applicant did not pass the character test, nor anything in the Department's records to indicate otherwise. Consequently, the Tribunal was satisfied that the applicant met PIC 4001(a), which requires the person to satisfy the Minister that they pass the character test.

Given these findings, the AAT determined that the appropriate course was to remit the application for the visa to the Minister for reconsideration, with a direction that the applicant meets PIC 4001 for the purposes of clause 461.223 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the Subclass 461 visa.