Chu (Migration)

[2024] AATA 3484

Chu (Migration) [2024] AATA 3484 (17 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Binh Chu

REPRESENTATIVE:  Mrs Thi Ngoc Anh Nguyen (MARN: 1791946)

CASE NUMBER:  2423701

HOME AFFAIRS REFERENCE(S):          BCC2023/978067

MEMBER:Karen McNamara

DATE:17 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 visa:

·cl 408.216 (PIC 4001) of Schedule 2 to the Regulations.

Statement made on 17 September 2024 at 10:34am

CATCHWORDS

MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history – Vietnam Police Clearance Certificates and Australian Federal Police National Police Certificate provided upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 408.216; Schedule 4, Public Interest Criterion 4001; r 2.03AA

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 Mr Van Binh Chu (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 9 January 2024. The criteria for a Temporary Activity (Class GG) visa are set out in Schedule 2 to the Migration regulations 1994 (the regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. The decision record provided to the Tribunal by the applicant, records that on 5 July 2024, the delegate refused to grant the visa because the applicant did not satisfy cl.408.216 of Schedule 2 to the Regulations. The delegate was not satisfied that the applicant satisfied PIC 4001 as prescribed in reg 2.03AA(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: r.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 r.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. 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 r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

6. The delegate refused to grant the visa on the basis that the applicant did not meet r.2.03AA because he failed to provide a police clearance certificate or other statement (however described) provided by an appropriate authority in each of the countries, where he had resided for a total of 12 months or more in the last 10 years.

7. The applicant lodged an application for review with the Tribunal on 18 July 2024. The application was accompanied by Police Clearance Certificates, issued by The Socialist Republic of Vietnam, Hanoi People’s Committee, Department of Justice, on 11 June 2024 2024 and a National Police Certificate issued by the Australian Federal Police on 3 January 2024.

8. In accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in favour of the applicant on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal to give evidence in relation to the decision under review.

9. The applicant has now provided at review, Police Clearance Certificates to the Tribunal, from a relevant authority in countries where the applicant has resided that provides evidence as to whether or not the applicant has a criminal history. The applicant has provided a Police Clearance Certificate issued by The Socialist Republic of Vietnam, Hanoi People’s Committee, Department of Justice, on 11 June 2024, advising there are no disclosable court outcomes recorded against the applicant’s name. The applicant has also provided a National Police Certificate issued by the Australian Federal Police on 3 January 2024, certifying that there are no disclosable court outcomes recorded against the applicant’s name.

10. The applicant therefore has provided a statement from an appropriate authority and therefore meets r.2.03AA(2) and as such satisfies PIC 4001.

    DECISION

11. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 visa:

    ·cl 408.216 (PIC 4001) of Schedule 2 to the Regulations

    Karen McNamara
    Member