Madade (Migration)

[2023] AATA 3843

Madade (Migration) [2023] AATA 3843 (8 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tendayi Madade

VISA APPLICANT:  Mrs Felistus Madade

CASE NUMBER:  2317343

HOME AFFAIRS REFERENCE(S):          BCC2023/1839096

MEMBER:Brendan Darcy

DATE:8 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 visa:

·Regulation 2.03AA(2)

Statement made on 08 November 2023 at 5:07pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – character test – statement from an appropriate authority – Zimbabwe Criminal Investigation Department Headquarters – South African Police Service (Suid-Afrikaanse Polisiediens) – request for police certificates under any other names used in those jurisdictions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 309.225; Schedule 4, PIC 4001

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 Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 20 March 2023. The criteria for a Partner (Provisional) (Class UF) 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, 309.225 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. 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. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal may waive the requirement in reg 2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

5. The delegate refused to grant the visa on 3 October 2023 on the basis that the applicant did not meet reg 2.03AA because no statement provided by an appropriate authority in a country where the applicant resides, or has resided, that provides evidence about whether or not the person has a criminal history.

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.

   Has the applicant provided a statement from an appropriate authority?

8. On 19 March 2023 and 5 May 2023, the applicant had provided police certificates from Zimbabwe and the Republic of South Africa (RSA) under the name Felistus Madade.

9. After assessing the documents, a delegate on behalf of the Minister sent the applicant a letter by email on 14 August 2023 requesting further information, which included a request for police certificates from Zimbabwe and RSA with any other names used in those jurisdictions, specifically under the alias Felistus Mahambayedwa. 

10. With respect to this requested information regarding police certificate, the applicant did not respond in a timely manner.

11. The delegate proceeded to refuse the visa on 3 October 2023.

12. An application to have delegate’s refusal decision reviewed by the Tribunal was validly lodged by the sponsoring partner on 27 October 2023.

13. On the same date as the application for review, the Tribunal received a police certificate from Zimbabwe dated 4 October 2023 pertaining to the applicant’s alias. The document was issued by the Criminal Investigation Department Headquarters in Zimbabwe. The Tribunal also received a police clearance certificate date stamped 14 October 2023 and issued by the South African Police Service (Suid-Afrikaanse Polisiediens) pertaining to the applicant’s alias

14. These documents or statements are suitable for the purposes of subregulation 2.03AA(2)(a).

15. Based on this information, no scheduled hearing was required to reach a favourable decision in this matter.

16. The applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

17. On the basis of the above findings, the applicant meets reg 2.03AA(2).

    DECISION

18. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 visa:

    ·Regulation 2.03AA(2).

    Brendan Darcy
    Member