Nguyen Huy (Migration)

This matter concerned an application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa, subclass 461. The applicant, Nguyen Huy, sought review of a decision made by a delegate of the Minister. The Tribunal, constituted by Member Anne Grant, was required to consider whether the applicant met the character test as stipulated by Public Interest Criterion (PIC) 4001.

The central legal issue before the Tribunal was whether the applicant satisfied PIC 4001, which mandates that a visa applicant must pass the character test. This involves an assessment of whether there is anything to indicate the applicant would fail the character test, or if the Minister has decided not to refuse the visa despite reasonable suspicion or lack of satisfaction regarding the applicant's character. The delegate had previously found that the applicant did not satisfy PIC 4001 because the required police certificates from Vietnam and Australia had not been provided at the time of the decision.

The Tribunal reasoned that the applicant had subsequently provided a Police Certificate from the Ministry of Justice of Vietnam, dated 28 January 2021, confirming no criminal records in Vietnam. It accepted this certificate as valid for the review, noting the applicant had not spent twelve months or more in Vietnam since its issuance. Additionally, an updated Australian Federal Police (AFP) Digital National Police Certificate, dated 1 May 2023, was submitted, indicating no disclosable court outcomes as at 19 April 2023. Based on this evidence, the Tribunal found that the applicant satisfied the character test and met the requirements of PIC 4001 for the purposes of clause 461.223(a).

Consequently, the Tribunal remitted the application for a subclass 461 visa to the Minister for reconsideration of the remaining visa criteria. The remittal was made with the direction that the visa applicant meets the character criterion under PIC 4001.