Wanigasekera (Migration)

The Administrative Appeals Tribunal (the Tribunal) had affirmed a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse a Visitor (Class FA) visa (subclass 600) to the applicant, Mr. Wanigasekera. The refusal was based on the applicant's criminal history, specifically a conviction in Sri Lanka. The applicant sought judicial review of the Tribunal's decision.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal had erred in law by failing to properly consider the evidence of the applicant's criminal history, particularly in relation to the requirement for a statement from an appropriate authority. The applicant contended that the Tribunal had placed undue weight on a National Police Certificate issued by the Australian Federal Police and had not adequately assessed the probative value of a Police Clearance Certificate from Sri Lanka, which was provided by the applicant.

Justice Symons found that the Tribunal had erred in law by failing to adequately engage with the evidence concerning the Sri Lankan Police Clearance Certificate. The Tribunal had treated the Australian Federal Police certificate as the definitive document regarding the applicant's criminal history without sufficiently explaining why the Sri Lankan certificate, which was also evidence of the applicant's criminal record, was not given appropriate weight. The court reiterated the principle that all relevant evidence must be considered and assessed for its probative value when determining whether a visa applicant meets the character requirements.

The court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.