Davigny (Migration)

[2023] AATA 229

Davigny (Migration) [2023] AATA 229 (20 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nathan Yves Jean-Pierre Gervais Davigny

REPRESENTATIVE:  Ms Cindy Zhao

CASE NUMBER:  2214352

HOME AFFAIRS REFERENCE(S):          BCC2021/96130

MEMBER:Andrew McLean Williams

DATE:20 January 2023

PLACE OF DECISION:  Brisbane

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:

·cl 408.216 of Schedule 2 to the Regulations.

Statement made on 20 January 2023 at 1:58pm

CATCHWORDS
MIGRATION –Temporary Activity visa – Subclass 408 visa – applicants have provided Australian Federal Police certificates with “no disclosable court outcomes” – decision under review remitted 

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA(2)(a), Schedule 2, cl 408.216

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 on 13 September 2022 thereby refusing 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 26 January 2022. At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants must satisfy the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl 408.216(1) of Schedule 2 to the Regulations because the Applicant could not satisfy Public Interest Criteria (‘PIC’ 401), by reason that by the time of the Delegate’s decision he had not provided a National Police Certificate of the type specified in sub-regulation 2.03AA(2)(a).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the Applicant can meet the requirements of subregulation 408.216(1), which includes satisfaction of PIC 4001 by means of the provision of the police certificate required by subregulation 2.03AA(2)(a).

6. The Tribunal wrote to the Applicant’s representative about this issue, on 9 December 2022.  In response, on 13 December 2022, the Applicant provided a copy of the necessary Australian Federal Police Certificate, indicating that there were ‘nil’ reportable court outcomes in Australia listed in the Applicant’s name.  Accordingly the Tribunal is satisfied that the Applicant meets the requirements of PIC 4001 and, in turn, meets the requirements of sub-regulation 408.216.

7. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

   DECISION

8. 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 (Temporary Activity) visa:

   ·cl 408.216 of Schedule 2 to the Regulations.

   Andrew McLean Williams
   Member