Buddharaju (Migration)

[2024] AATA 2624

Buddharaju (Migration) [2024] AATA 2624 (10 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vikhyath Varma Buddharaju

REPRESENTATIVE:  Mr Gaurav Chawla (MARN: 1806582)

CASE NUMBER:  2410612

HOME AFFAIRS REFERENCE(S):          BCC2023/6754371

MEMBER:Wan Shum

DATE:10 July 2024

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 10 July 2024 at 1:44pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history statements – certificates from Australia and home country provided to tribunal – 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(2)(a)

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 applied for the visa on 22 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 which includes reg 2.03AA which 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 and 4002. The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

3. 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. 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.

4. The delegate found that the applicant did not satisfy the criterion in reg 2.03AA because the applicant did not provide the information or the documents requested.

5. The applicant sought review of that decision and provided a copy of a National Police Certificate issued by the Australian Federal Police and a Police Clearance Certificate issued by the Ministry of External Affairs, being the relevant authority of the Government of India for this purpose.

6. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets reg 2.03AA. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s criminal history.

8. The applicant had not provided an Immigration/Citizenship check from the AFP or an overseas police check to the Department before the decision was made.

9. When making the application for review, the applicant provided a copy of an AFP Certificate for Immigration/Citizenship dated 11 May 2024 and a copy of a Police Clearance Certificate issued by the Ministry of External Affairs, Government of India dated 4 June 2024.

10. As the applicant has now complied with the request to provide evidence of police clearance certificate for each country he has resided in for at least 12 months in the past 10 years, the Tribunal finds that the applicant satisfies the criterion in reg 2.03AA(2)(a).

11. As the requested documents have been provided on review, the delegate is now able to assess whether the applicant meets PIC 4001.

12. The Tribunal remits the matter with a direction that the applicant satisfies reg 2.03AA(2).

    DECISION

13. 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)

    Wan Shum
    Member