Hussein Ali (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision to refuse a Subclass 117 (Orphan Relative) visa. The visa applicant, a national of Somalia, had relocated from Kenya to Somalia. The review applicant, who was the sponsor and sister of the visa applicant, sought review of the refusal decision. The Tribunal had previously remitted the application to the Department with a direction that the visa applicant met a specific criterion.

The primary legal issue before the Tribunal was whether the visa applicant had provided a statement from an appropriate authority regarding her criminal history, as required by regulation 2.03AA(2)(a) of the Migration Regulations 1994. The Tribunal also considered whether it was reasonable for the applicant to provide such a statement, and if not, whether the requirement should be waived under regulation 2.03AA(3). The visa applicant had been requested to provide a Kenya police clearance certificate, which she had not supplied.

The Tribunal reasoned that the visa applicant had not met the requirement of regulation 2.03AA(2)(a) as she had not provided the requested police certificate. The Tribunal noted the extensive efforts made by the applicant's representative to obtain the certificate, including the applicant's relocation and difficulties in applying from different countries, as well as issues with her UNHCR mandate. However, the Tribunal found that the applicant had not provided evidence that it was unreasonable to obtain the statement, nor had she provided the statement itself. Despite this, the Tribunal decided to remit the application for reconsideration by the Minister, with a direction that the visa applicant met the criterion under regulation 2.03AA(2).