An (Migration)

[2023] AATA 271

An (Migration) [2023] AATA 271 (5 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Donghyun An

REPRESENTATIVE:  Mr Sehoon Jun (MARN: 1798516)

CASE NUMBER:  2212511

HOME AFFAIRS REFERENCE(S):          BCC2021/309475

MEMBER:Nathan Goetz

DATE:5 January 2023

PLACE OF DECISION:  Sydney

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:

·Regulation 2.03AA(2)

Statement made on 05 January 2023 at 9:59am

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) criminal history – Western Australian national police certificate provided to delegate – Australian certificate not provided after multiple requests – 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), r 2.03AA(1), (2), Schedule 2, cl 408.216, Schedule 4, criterion 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 Temporary Activity (Class GG) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant was represented in the review by registered migration agent 1798516.

   BACKGROUND

3. The applicant applied for the visa on 3 March 2021. The criteria for a Temporary Activity (Class GG) 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.

4. 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, cl 408.216 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).

5. 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.

6. The delegate refused to grant the visa on 4 August 2022 on the basis that the applicant did not meet reg 2.03AA because a police clearance certificate had been requested by the delegate, but the applicant had not provided it.

7. On 25 August 2022 the applicant applied to the Tribunal for review of the decision.

8. After considering the material provided by the applicant to the Tribunal subsequent to the applicant applying for review, the Tribunal decided to make a decision favourable to the applicant. This meant that the Tribunal made a decision without inviting the applicant to appear at a Tribunal hearing: s 360(2)(a) of the Act.

   CONSIDERATION AND FINDINGS

9. 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.

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

11. According to the delegate decision record, the applicant provided the delegate with a Western Australian National Police Certificate dated 4 March 2021 in support of his visa application. That certificate declared that the applicant is not recorded by the Australian police jurisdictions with any disclosable court outcomes or pending charges.

12. The delegate records that on 22 June 2021, 16 August 2021, 20 September 2021 and on 4 February 2022, the applicant was directed to provide an Australian Federal Police National Police Certificate, which the delegate determined was an appropriate authority for the purpose of advising whether the applicant had a criminal record. The decision record details that the applicant did not provide this statement within the prescribed timeframe.

13. Accordingly, the delegate was not satisfied that the applicant met Regulation 2.03AA for the purpose of PIC 4001 for the purpose of cl 408.216 of Schedule 2 to the Regulations and refused to grant the visa.

14. After the applicant applied to the Tribunal for review of the decision, he submitted an Australian Federal Police National Police Certificate dated 9 August 2022. This certificate confirmed that the applicant had no disclosable court outcomes recorded against his name.

15. The Tribunal is satisfied that this document is a statement from an appropriate authority. It is regrettable that the applicant did not provide this document to the delegate when requested to do so, because it would have avoided the need of the applicant to apply to the Tribunal for review.

    CONCLUSION

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

    decision

17. 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:

    ·Regulation 2.03AA(2).

    Nathan Goetz
    Member