Sesay (Migration)

[2024] AATA 28

Sesay (Migration) [2024] AATA 28 (5 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ibrahim Sesay

VISA APPLICANTS:  Mrs Safi Dioubate
Master Alpha Amadou Sesay

REPRESENTATIVE:  Ms Hannah Gray

CASE NUMBER:  2300148

HOME AFFAIRS REFERENCE(S):          BCC2021/1953588

MEMBER:Brendan Darcy

DATE:5 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 309 visa:

·cl 309.222 of Schedule 2 to the Regulations

Statement made on 05 January 2024 at 9:02am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – criminal history – updated Australian Federal Police National Police Certificate provided upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 1.20; Schedule 2, cl 309.222

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 applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 14 October 2021. The delegate refused to grant the visas on 9 December 2022.

2. The delegate made the decision on the basis that evidence of a suitable police clearance certificate from a relevant authority with Australia in relation to the review applicant had not been provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations). Specifically, subclasses 309.222 was not satisfied.

3. Subclause 309.222(1) requires that your sponsorship has been approved by the Minister and is still in force, while subclause 309.222(2) requires that the sponsor has consented to the Department of Home Affairs (the Department) disclosing to each applicant included in the sponsorship any conviction the sponsor has for a ‘relevant offence’ (within the meaning of subregulation 1.20KC(2)).

4. In this matter, the review applicant is the sponsoring spouse of the first named visa applicant (or the sponsor).

5. At the time of application, the applicant had provided a National Police Certificate dated 22 January 2021 to the Department. However, the Department wrote to the applicant requesting an updated Australian Federal Police check in relation to the review applicant on 22 August 2022. As the parties did not respond, the delegate proceeded to refuse the grant of the partner visas to the visa applicants on 9 December 2022.

6. On 5 January 2023, the review applicant applied to have the refusal decision reviewed by the Tribunal.

7. On4 December 2023, the Tribunal received a National Police Certificate issued by the Australian Federal Police in relation to the review applicant. It is dated 1 December 2023. 

   In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

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

   DECISION

9. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 309 visa:

   ·cl 309.222 of Schedule 2 to the Regulations

   Brendan Darcy
   Member