Camelio Vilicic (Migration)

[2023] AATA 710

Camelio Vilicic (Migration) [2023] AATA 710 (7 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vincenzo Carlo Camelio Vilicic

CASE NUMBER:  2301158

HOME AFFAIRS REFERENCE(S):          BCC2022/1404267

MEMBER:Nicole Burns

DATE:7 March 2023

PLACE OF DECISION:  Melbourne

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 07 March 2023 at 3:08pm

CATCHWORDS
MIGRATION –Temporary Activity visa – Subclass 408 visa –AFP National Police Clearance provided – Chilean police certificate provided – no record of criminal offences in the name of the applicant– decision under review remitted  

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, 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 25 April 2022. 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, subclause 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. 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.

5. The delegate refused to grant the visa on 18 January 2023 on the basis that the applicant did not meet reg 2.03AA because he did not provide a statement from an appropriate authority overseas that provides evidence about whether or not he has a criminal history, despite being requested in writing to do so.  

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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. According to information contained in the delegate’s decision record, the applicant provided a copy of his Australian Federal Police (AFP) certificate to the Department when he applied for the visa.  The Department requested in writing the applicant provide a statement by an appropriate authority that provides evidence about whether or not he has a criminal history overseas.  However by the time of the delegate’s decision he had failed to provide the statement and his visa application was refused on this basis.

10. On review the applicant submitted to the Tribunal a translated copy (and a copy of the original) of his Chilean police certificate issued on 24 January 2023. 

11. The applicant has provided a statement from an appropriate authority (in Chile) and therefore meets reg 2.03AA(2)(a).

    Conclusion

12. On the basis of the above findings, the applicant meets 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).

    Nicole Burns
    Member