Robinson (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by a child applicant sponsored by his father, an Australian permanent resident. The dispute arose when the Department of Home Affairs refused to approve the sponsorship, finding that the sponsor and his spouse had failed to provide the requested police clearance certificates from various countries where they had resided for a cumulative period of 12 months or more within the last 10 years. The Tribunal was asked to determine whether the sponsor met the requirements for sponsorship approval under regulation 1.20KB and clause 802.226 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to assess whether the sponsor and his spouse had complied with the Department's requests for police clearances, particularly in light of the sponsor's explanation regarding the nature of his employment as an aviation consultant and aircraft engineer, which involved frequent international travel. The core legal issue was whether the sponsor's inability to provide the requested clearances, due to the extensive and transient nature of his overseas travel for work, constituted a failure to meet the requirements of regulation 1.20KB, thereby preventing the sponsorship from being approved.

The Tribunal found that the sponsor and his spouse had provided Australian Federal Police clearance certificates. However, the Department had requested further police clearances from countries where they had lived for a total of 12 months or more in the last 10 years. The sponsor explained that due to his work, he had visited numerous countries for short periods, making it practically impossible to obtain police clearances from all of them. The Tribunal accepted that the sponsor had made genuine efforts to compile the necessary information but highlighted that the regulations allowed the Minister to request such clearances. Crucially, the Tribunal noted that the sponsor's spouse had provided an AFP clearance certificate under an alias, which was subsequently accepted. The Tribunal concluded that the sponsor had met the requirements of clause 802.226, as the provided AFP clearance certificates were sufficient in the circumstances, and the sponsor's spouse had provided her AFP clearance.

Consequently, the Tribunal remitted the application for a Child (Residence) (Class BT) visa for reconsideration by the Minister, with the direction that the applicant meets the criteria under clause 802.226 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa.