Saeidi (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative). The applicant sought to migrate to Australia based on being the remaining relative of their Australian citizen sister. The primary dispute revolved around whether the applicant met the criteria for a Remaining Relative visa and whether they had contravened Public Interest Criterion (PIC) 4020 by providing bogus documents or false or misleading information in a previous visa application.

The Tribunal was required to determine two key legal issues. Firstly, whether the applicant qualified as a "remaining relative" of an Australian relative at the time of application and decision, as defined by the Migration Regulations 1994. This involved assessing whether the applicant's sister was an Australian relative and whether the applicant, along with their spouse, had no "near relatives" in Australia other than those who were usually resident in Australia and were Australian citizens, permanent residents, or eligible New Zealand citizens. Secondly, the Tribunal had to determine if the applicant satisfied PIC 4020, which pertains to the provision of bogus documents or false or misleading information in a visa application.

The Tribunal's reasoning focused on the applicant's previous Subclass 457 visa application, where they claimed to have worked a second job as a cook for at least 44 hours per week. Integrity checks by the Department raised concerns about the genuineness of this employment and a reference letter provided for it, as the applicant had previously stated they could not provide evidence of this work. The Department's office in Tehran reported difficulties in verifying the employment and the author of the reference, noting the applicant's full-time engineering employment and the logistical challenges of undertaking such a second job. Despite the applicant's explanation that the work was informal and undocumented, and that they had been forthright about their employment history, the delegate found the information to be false or misleading and the reference to be a bogus document.

Ultimately, the Tribunal remitted the application for reconsideration. The direction was that the applicant met the criteria for the Subclass 835 visa, including the requirements of cl.835.212 and cl.835.221 of Schedule 2 to the Regulations, and PIC 4020 for the purposes of cl.835.223. This indicates that the Tribunal found the applicant satisfied the substantive visa requirements and that any issues relating to PIC 4020 were either resolved or waived in favour of the applicant.