Ardizzoni Castro (Migration)

[2024] AATA 2215

Ardizzoni Castro (Migration) [2024] AATA 2215 (21 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Antonio Salvador Ardizzoni Castro
Miss Grace Ardizzoni

CASE NUMBER:  2407928

HOME AFFAIRS REFERENCE(S):          BCC2023/7024545

MEMBER:Penelope Hunter

DATE:21 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 408 visa:

·Regulation 2.03AA(2)(a)

Statement made on 21 June 2024 at 1:31pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – statement from an appropriate authority – Australia Federal Police (AFP) National Police Certificate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 408.213; 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 applicants Temporary Activity (Class GG) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 4 December 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(1) 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. The delegate refused to grant the visas on the basis that the first named applicant did not meet reg 2.03AA because he had not provided a statement from an appropriate authority, particularly an Australia Federal Police (AFP) National Police Certificate.

5. In light of the new evidence received, the Tribunal was able to find in favour of the applicant on the basis of the material before it and it dispensed with a hearing pursuant to s 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Regulation 2.03AA(2)(a) requires that, if requested, an 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.

8. The delegate in their decision record sets out that a statement from an appropriate authority was not provided by the first named applicant with the visa application. A copy was requested by the Department on 31 January 2024, but was not submitted within the time requested.

9. On review the first named applicant provided a submission that he did not receive the request from the Department and he has also provided a copy of an AFP National Police Certificate issued on 5 April 2024 which discloses no reportable outcomes.

10. As the first named applicant has now provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

11. Given the above finding the appropriate court is to remit the applications for the visa to Minister to consider the remaining criteria for the first named applicant and the second named applicant for a Temporary Activity (Class GG) (subclass 408) visa.

    DECISION

12. The Tribunal remits the applications for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 408 visa:

    ·Regulation 2.03AA(2)(a).

    Penelope Hunter
    Member