McCarthy (Migration)

The Administrative Appeals Tribunal considered an application for review by a New Zealand citizen concerning the refusal of a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa, Subclass 461. The primary decision had refused the visa on character grounds, specifically the applicant's failure to provide an Australian police certificate as requested by the Department. The applicant subsequently sought review of this decision by the Tribunal.

The central legal issue before the Tribunal was whether the applicant had provided a statement from an appropriate authority that evidenced whether or not she had a criminal history, as required by regulation 2.03AA(2)(a) of the Migration Regulations. The Tribunal was required to determine if the evidence submitted by the applicant satisfied this regulatory requirement, particularly in light of the timing of its submission relative to the original refusal decision and subsequent requests from the Tribunal.

The Tribunal reasoned that while the applicant had not provided the Australian Federal Police National Police Certificate by the date of the original refusal, she had submitted a copy of this certificate, dated 29 March 2022, to the Tribunal on 14 May 2022, following a request from the Tribunal on 11 May 2022. The Tribunal also noted a statement from the applicant explaining the delay in providing this information. Based on this, the Tribunal concluded that the applicant had met the requirement of regulation 2.03AA(2)(a).

Consequently, the Tribunal remitted the application for reconsideration. The Tribunal directed that the applicant be considered to have met the criteria under regulation 2.03AA(2)(a) for the Subclass 461 visa. The Tribunal also noted that if a completed Form 80 had been requested by the Department, this would still need to be provided before a decision maker could be satisfied that the applicant met all aspects of regulation 2.03AA(2).