Aranas (Migration)

[2024] AATA 2354

Aranas (Migration) [2024] AATA 2354 (24 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kurtis Cervantes Elizondo Aranas

CASE NUMBER:  2410128

HOME AFFAIRS REFERENCE(S):          BCC2023/6741500

MEMBER:Member Nathan Goetz

DATE:24 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision dated 15 April 2024 refusing to grant the applicant a Temporary Activity (Class GG) visa and remits the visa application for a for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 visa:

·Regulation 2.03AA(2)

Statement made on 24 June 2024 at 9:14pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history statement – documents from Australia and home country provided to tribunal – no disclosable court outcomes – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(1), (2)(a), Schedule 2, cl 408.216, Schedule 4, criterion 4001

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for merits 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 applied for the visa on 21 November 2023. 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.

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, 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).

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 15 April 2024 on the basis that the applicant did not meet reg 2.03AA because on 13 March 2024 the delegate requested that the applicant provide police clearance certificates for every country that the applicant had resided in for a cumulative period of 12 months in the last 10 years. The applicant was given 28 days to do so. He did not provide the delegate with the certificates.

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

   CONSIDERATION AND FINDINGS

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. The applicant is a male citizen of the Philippines who is presently located in Australia.

9. The applicant’s migration history demonstrates that he has resided for a cumulative period of 12 months in the last 10 years in his country of citizenship and Australia.

10. He was therefore required to provide police clearance certificates for both of those countries.

11. After the applicant applied to the Tribunal for review of the decision, he provided the Tribunal with the following documents:

    ·     A document dated 22 March 2024 from the Department of Justice of the Philippines indicating that the applicant had no record on file.

    ·     A document dated 13 January 2024 from the Australian Federal Police indicating that the applicant has no disclosable court outcomes.

12. Those documents are statements from relevant authorities which provide evidence about whether or not the applicant has a criminal history. It is regrettable that the applicant did not provide those statements to the delegate prior to the decision being made on 15 April 2024 so that a review application and the cost associated to the applicant and the community could have been avoided.

    CONCLUSION

13. On the basis of the above findings, the Tribunal finds that the applicant satisfies reg 2.03AA(2).

    DECISION

14. The Tribunal sets aside the decision dated 15 April 2024 refusing to grant the applicant a Temporary Activity (Class GG) visa and remits the visa application for a for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 visa:

    ·Regulation 2.03AA(2)

    Nathan Goetz

    
    

    Member