Fernandes Da Silva (Migration)

[2022] AATA 3699

Fernandes Da Silva (Migration) [2022] AATA 3699 (16 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lamartine Fernandes Da Silva
Mrs Katia Nogueira Fernandes
Mr Gustavo Nogueira Fernandes
Miss Giovana Nogueira Fernandes

REPRESENTATIVE:  Mr Jensen Ma

CASE NUMBER:  2210169

HOME AFFAIRS REFERENCE(S):          BCC2020/1487169

MEMBER:De-Anne Kelly

DATE:16 September 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 visa:

·cl 408.216 of Schedule 2 to the Regulations.

Statement made on 16 September 2022 at 3:04pm

CATCHWORDS
MIGRATION –Temporary Activity visa – Subclass 408 visa – applicants have provided Australian Federal Police certificates with “no disclosable court outcomes” – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 408.216

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 July 2022 to refuse to grant the applicants Temporary Activity (Class GG) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 5 May 2020. At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). At least one member of the family unit must satisfy the primary criteria, comprising the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl 408.216 of Schedule 2 to the Regulations because the applicant did not provide an Australian Federal Police (AFP) National Police Clearance to satisfy PIC 4001.

4. The applicants were represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant satisfies cl.408.216 which provides as follows.

   408.216 Common Criteria

   (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4013, 4014, 4020 and 4021.

   Public interest criterion 4001 is satisfied when:
   4001
   Either:
   (a) the person satisfies the Minister that the person passes the character test;

7. The requirement is “time of Decision” and the applicants have provided Australian Federal Police certificates dated July 2022 with “no disclosable court outcomes” and Brazilian Police clearnces with similar advice and as such the Tribunal finds the applicant has satisfied cl.408.216.

8. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

9. The secondary applicants were refused on the basis of not satisfying cl 408.311 because the primary applicant was refused a 408 (Temporary Activity ) visa

   408.311
   The applicant is a member of the family unit of a person (the primary applicant) who holds any of the following visas granted on the basis of satisfying the primary criteria for the grant of that visa:
   (a) a Subclass 408 (Temporary Activity) visa;

10. However, the Tribunal has remitted the primary applicants visa application and considers that it is appropriate to remit the secondary applicants applications for reconsideration.

    DECISION

11. The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:

    ·cl 408.216 of Schedule 2 to the Regulations.

    De-Anne Kelly
    Member