Mumbo (Migration)

[2023] AATA 3269

Mumbo (Migration) [2023] AATA 3269 (2 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Agatha Nyanduko MUMBO

REPRESENTATIVE:  Mr Nino Sekyere-Boakye (MARN: 0959773)

CASE NUMBER:  2113453

HOME AFFAIRS REFERENCE(S):          BCC2020/401967

MEMBER:Amanda Mendes Da Costa

DATE:2 October 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl 485.216(1) of Schedule 2 to the Regulations.

Statement made on 2 October 2023 at 11.58am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – character test – criminal history statement not provided to department – AFP national police certificate provided to tribunal – no disclosable court outcomes – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 485.216(1)

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 15 September 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 12 February 2020. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not meet the requirements of cl 485.216(1) of Schedule 2 to the Regulations because she did not satisfy the ‘character test’ in Public Interest Criteria (PIC) 4001. The delegate found that this was because the applicant had not provided an Australian Federal Police (AFP) certificate regarding the applicant’s criminal history, which was a key source of information regarding her character.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

5. The applicant was represented in relation to the review.

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 the present case is whether the applicant meets the requirements of cl 485.216(1) of Schedule 2 to the Regulations.

8. The Tribunal notes that on 28 September 2023 it received an Australian Federal Police National Police certificate in respect of the applicant (dated 28 September 2023), which show that there are no disclosable court outcomes for her.

9. Accordingly, the Tribunal is satisfied that the applicant satisfies cl 485.216(1).

10. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

11. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl 485.216(1) of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member