Mabuyo (Migration)

[2022] AATA 4652

Mabuyo (Migration) [2022] AATA 4652 (1 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vicente Mabuyo

REPRESENTATIVE:  Mr Bijaya Gurung (MARN: 1805361)

CASE NUMBER:  2215027

HOME AFFAIRS REFERENCE(S):          BCC2019/5275377

MEMBER:Andrew McLean Williams

DATE:1 December 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Training (Class GF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 407 visa:

·Regulation 2.03AA(2)

Statement made on 01 December 2022 at 3:44pm

CATCHWORDS

MIGRATION – Training Visa (Class GF) visa – Subclass 407 (Training) – criminal history – Australian Federal Police National Police Certificate provided upon review – decision under review remitted            

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 403.219; Schedule 4, Public Interest Criterion 4001; r 2.03AA

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 to refuse to grant the applicant a Training (Class GF) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant applied for the visa on 21 October 2019. The criteria for a Training (Class GF) visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: reg 2.03AA(1). In this case, r.403.219A of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

4. Regulation 2.03AA(2)(a) requires that, if requested, the applicant has provided a statement from a relevant authority in a country where the person resides or has resided that provides evidence about whether or not the person has a criminal history.

5. The delegate refused to grant the visa on 3 October 2022 on the basis that the Applicant did not meet reg 2.03AA because a National Police Certificate had not been provided.

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

   consideration of claims and evidence

7. The issue in this case is whether the applicant has provided a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history.

8. On 15 November 2022 the Applicant provided the Tribunal with a copy of an Australian Federal Police certificate dated 5 October 2022 indicating that there are no disclosable court outcomes in the name of the Applicant

   Conclusion

9. On the basis of the above findings, the Applicant meets reg 2.03AA(2).

   decision

10. The Tribunal remits the application for a Training (Class GF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 407 visa:

    ·Regulation 2.03AA(2).

    Andrew McLean Williams
    Member