De Souza Almeida (Migration)

[2020] AATA 2518

De Souza Almeida (Migration) [2020] AATA 2518 (30 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hugo De Souza Almeida
Mrs Andreia Alves Teixeira Almeida
Mr Levy De Souza Almeida

CASE NUMBER:  2002402

HOME AFFAIRS REFERENCE(S):          BCC2019/1466547

MEMBER:Alan McMurran

DATE:30 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 408 visa:

·cl.408.216 of Schedule 2 to the Regulations; and

·cl.2.03AA of Division 2.1 of Part 2 of the Regulations.

Secondary Applicants

The visa applications by the second and third named applicants are remitted with the direction that the applications be considered for the remaining criteria.

Statement made on 30 April 2020 at 11:51am

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – breached PIC4001 – AFP National Police Clearance 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, Schedule 2, cls 408.216, 408,311, Schedule 4, PIC 4001

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 8 February 2020 for review of a decision made by a delegate of the Minister for Home Affairs on 21 January 2020 to refuse to grant the applicants Temporary Activity (Class GG) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 23 March 2019. 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 (the Regulations). At least one member of the family unit must satisfy the primary criteria, comprising 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 visas on the basis that the first named applicant (the applicant) did not satisfy the criteria for the grant of the visa set out in cl.408.216 of Schedule 2 to the Regulations, which requires the applicant meet the character test in PIC 4001 of Schedule 4 to the Regulations. The applicant failed to provide a “complete disclosure” police certificate to the Department when requested to do so in accordance with the regulations (r.2.03 AA).

4. On 3 June 2019, the Department requested the applicant to provide information concerning a police clearance certificate. On 25 March 2020, the applicant provided to the Tribunal a National Police Certificate, Complete Disclosure, dated 19 March 2020.

5. The Tribunal has considered the information and documents available from the Department and as provided by the applicant. On the information now before it, the Tribunal considers it can decide the review without the further requirement of a hearing, and in accordance with the Act.[1]

   [1] section 360 (2)

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the requirements of the Regulations, clause 408.216 of Schedule 2, and regulation 2.03 AA of Division 2.1 of Part 2. Briefly, whether the applicant has met the character test in public interest criteria 4001, by the provision of the statement requested, National Police Certificate, Complete Disclosure.[2]

   [2] r.2.03AA(2)

8. The Tribunal has had regard to the electronic copies of documents uploaded from the Department’s file and the Tribunal’s case file, including the applicant’s submissions made to the Tribunal in March 2020.

9. Clause 408.216 requires at subclause (1) that the applicant satisfies PIC 4001 of schedule 4 to the Regulations. PIC 4001 requires that the applicant satisfy the Minister that the applicant passes the character test, determined in part by the provision of an acceptable statement from the Australian Federal police, being an appropriate authority in Australia where the applicant resides (or has resided) and that provides evidence about whether or not the applicant has a criminal history.

10. The information discloses the applicant had provided a national police certificate, standard disclosure (name check only) on 10 October 2019. This certificate did not meet the formal requirement to satisfy the character test in PIC 4001, as it referred to name only and was not a complete disclosure of any prior criminal matters.

11. The Tribunal wrote to the applicant by email on 24 February 2020 requesting the applicant provide a complete disclosure certificate from the Australian Federal police. The Tribunal finds the applicant provided a complete disclosure certificate from the Australian Federal police to the Tribunal dated 19 March 2020. The Tribunal is satisfied the statement is valid and discloses no record of criminal offences in the name of the applicant.

12. The Tribunal finds therefore the applicant has met the requirement in PIC 4001 by the provision of the statement, and satisfied Regulation 2.03AA(2), so that.r. 2.03AA is met.

13. Accordingly, cl.408.216 is met.

    Secondary applicants

14. The second and third named applicants are members of the family unit of the first named primary visa applicant.

15. Clause 408.311 specifies criteria for members of the family unit, who are dependent upon a successful application by the primary visa applicant for their visa applications.

16. In the circumstances, the appropriate course is to remit the applications by the second and third named applicants to the Minister, to consider the remaining criteria.

    DECISION

17. The Tribunal remits the applications for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:

    ·cl.408. 216 of Schedule 2 to the Regulations; and

    ·clause 2.03 AA of Division 2.1 of Part 2 of the regulations.

    Secondary Applicants

    The visa applications by the second and third named applicants are remitted with the direction that the applications be considered for the remaining criteria.

    Alan McMurran
    Member