De Lima (Migration)

[2024] AATA 2622

De Lima (Migration) [2024] AATA 2622 (9 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Joyce Kelly De Lima

REPRESENTATIVE:  Mr Virender Nagar (MARN: 0955259)

CASE NUMBER:  2410300

HOME AFFAIRS REFERENCE(S):          BCC2023/7400813

MEMBER:Wan Shum

DATE:9 July 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:

·reg 2.03AA

Statement made on 09 July 2024 at 5:07pm

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 Regulation 1994 (Cth), r 2.03AA(1), (2)(a), Schedule 2, cl 408.216(1), Schedule 4, criterion 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 applicant a Temporary Activity (Class GG) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 19 December 2023. The delegate refused to grant the visa on 16 April 2024.

2. The delegate made the decision on the basis that evidence of criminal history was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate made the decision as the applicant did not provide an Overseas Police Clearance Certificate which is relevant to whether he satisfies public interest criterion (PIC) 4001.

4. Regulation 2.03AA of the Migration Regulations 1994 (Cth) (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 and 4002. The applicant is therefore required to satisfy the criterion in reg 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 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.

6. 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.

7. The applicant sought review of that decision and has provided a copy of a National Police Certificate issued by the Australian Federal Police and a Criminal Record Certificate issued by Ministério da Justiça e Segurança Pública Polícia Federal, being the relevant authorities of Brazil for this purpose.

8. 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 based on the material before it, pursuant to s 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. The Department wrote to the applicant requesting an Immigration/Citizenship name check from the AFP and an Overseas Police check but she did not provide these before the decision was made.

11. On review, the applicant provided a copy of an AFP Certificate for Immigration/Citizenship dated 14 May 2024 and a copy of a clearance issued by the Ministério da Justiça e Segurança Pública Polícia Federal dated 17 April 2024.

12. As the applicant has now complied with the request to provide evidence of police clearance certificate for each country overseas she 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).

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

14. The Tribunal remits the matter with a direction that the applicant satisfies reg 2.03AA.  

15. 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.

    DECISION

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

    ·reg 2.03AA

    Wan Shum
    Member