Mir (Migration)

This matter concerned applications for Other Family (Migrant) (Class BO) visas, Subclass 116 (Carer), made by a national of Afghanistan and his wife and three children. The primary dispute revolved around the applicants' failure to provide police clearance certificates from Uzbekistan and Iran in an acceptable format, which led to the delegate's decision to refuse the visa applications. The Tribunal was asked to review this decision.

The legal issues before the Tribunal were whether the visa applicants had met the requirements of Public Interest Criterion (PIC) 4001 and Regulation 2.03AA of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicants had provided a statement from an "appropriate authority" regarding their criminal history in Uzbekistan and Iran, as requested by the Department, and whether the Minister could waive the requirement under Regulation 2.03AA(3) if it was not reasonable for the applicant to provide the statement.

The Tribunal reasoned that while the initial attempts to obtain police checks from Uzbekistan and Iran were not in an acceptable format, the applicants had made genuine efforts to comply with the Department's requests. Crucially, the Tribunal received letters from the Embassy of the Republic of Uzbekistan which indicated no criminal records were identified for the visa applicants. The Tribunal considered these letters to be a statement from an appropriate authority for Uzbekistan. Given these developments, the Tribunal concluded that the applicants had now provided the requested statement from an appropriate authority for Uzbekistan, satisfying Regulation 2.03AA(2)(a).

Consequently, the Tribunal remitted the applications for reconsideration by the Department, with a direction that the first named visa applicant met the requirements of Regulation 2.03AA(2). The applications of the other family members were to be determined by reference to the outcome of the first applicant's reconsidered application.