Phommahaxay (Migration)

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant had been refused the visa by a delegate of the Minister. The primary dispute concerned the applicant's failure to provide a US police clearance certificate and a completed Form 80, which were requested by the delegate as part of the visa application process.

The Tribunal was required to determine whether the applicant met the criteria for the grant of a Subclass 835 visa, particularly Regulation 2.03AA of the Migration Regulations 1994, which mandates the provision of certain documents, including police certificates from countries of residence and a completed Form 80, if requested by the Minister. The Tribunal also needed to assess whether the delegate's original refusal, based on the applicant's failure to meet these requirements, was correct, and if not, what the appropriate course of action should be.

The Tribunal found that while the applicant had initially failed to provide a completed Form 80 and a US police clearance certificate, they had subsequently provided a US Department of Justice penal certificate to the Tribunal, which indicated no reportable outcomes and was less than 12 months old. A completed Form 80 also appeared on the departmental file. Consequently, the Tribunal was satisfied that the applicant now met Regulation 2.03AA. The Tribunal reasoned that the delegate's original refusal was based on the applicant not meeting Regulation 2.03AA, which was necessary for assessing PIC 4001 under clause 835.222. With the provision of the US police certificate, the delegate could now properly assess PIC 4001.

The Tribunal concluded that the appropriate course of action was to remit the application to the Minister for reconsideration. This reconsideration would involve assessing whether the applicant meets PIC 4001 for the purposes of clause 835.222 and any other remaining criteria for the grant of the Subclass 835 visa. The Tribunal directed that the applicant met Regulation 2.03AA.