Yoshimoto (Migration)

This matter concerned an application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa, subclass 461. The applicant sought review of a decision made by a delegate of the Minister. The Tribunal, constituted by Susan Trotter, considered whether the applicant met the character requirements for the visa.

The central legal issue before the Tribunal was whether the applicant satisfied Public Interest Criterion (PIC) 4001, which is a prerequisite for the grant of a subclass 461 visa under clause 461.223 of Schedule 2 to the Regulations. This criterion, in turn, engaged regulation 2.03AA, which prescribes that if a person is required to satisfy PIC 4001, they must provide a statement from an appropriate authority regarding their criminal history and a completed approved form 80, unless the Minister waives the requirement for the statement.

The Tribunal noted that the delegate's decision was based on the applicant's failure to provide an updated Australian police certificate. However, the applicant subsequently provided the Tribunal with a National Police Certificate from the Australian Federal Police, dated 2 December 2020, which stated there were no disclosable court outcomes recorded against the applicant. The Tribunal concluded that the delegate had restricted their consideration to regulation 2.03AA and that, in light of the new police certificate, the matter should be remitted to the Minister for reconsideration of whether the applicant meets PIC 4001 and the remaining criteria for the visa. The Tribunal remitted the application for reconsideration with a direction that the applicant meets the criteria under regulation 2.03AA.