Yanqiu (Migration)

This matter concerned an application for review by the applicant, a Chinese national, of a decision to refuse her a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa (Subclass 461). The primary decision to refuse the visa was made on 28 February 2020, after the applicant failed to provide a Chinese police certificate despite repeated requests from the Department. The applicant subsequently applied to the Tribunal for a review of this decision.

The central legal issue before the Tribunal was whether the applicant had provided a statement from an appropriate authority in China that evidenced whether she had a criminal history, as required by regulation 2.03AA(2)(a) of the Migration Regulations 1994. The Tribunal also considered whether a requirement under regulation 2.03AA(2)(b) regarding an approved Form 80 applied, noting there was no evidence the delegate had requested this form.

The Tribunal found that the applicant had, in fact, provided a statement from the appropriate authority. After being granted extensions, the applicant submitted a notarised Chinese Police Clearance dated 2 July 2020, along with an English translation. The Tribunal referred to information on the Department's website which indicated that the relevant document for China was a ‘Notary Certificate of No Criminal Convictions’, obtained after first securing a ‘No Criminal Convictions Certificate’ from a local police station and then presenting it to a Public Notary Office. Based on this, the Tribunal concluded that the applicant met the requirements of regulation 2.03AA(2)(a).

Consequently, the Tribunal remitted the application for reconsideration. The Tribunal directed that the applicant be considered to meet the criteria under regulation 2.03AA(2) for the Subclass 461 visa.