Dos Santos (Migration)

[2024] AATA 2839

Dos Santos (Migration) [2024] AATA 2839 (1 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joao Marcos Dos Santos

CASE NUMBER:  2412716

HOME AFFAIRS REFERENCE(S):          BCC2024/433865

MEMBER:P. Maishman

DATE:1 August 2024

PLACE OF DECISION:  Perth

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 01 August 2024 at 3:50pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history statements – genuine and current Australian and home state certificates provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(1), (2)(a), Schedule 2, cl 408.216, 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).

2. The applicant applied for the visa on 29 January 2024. 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, 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 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. 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).

5. The delegate refused to grant the visa on 15 May 2024 on the basis that the applicant did not meet reg 2.03AA because he did not provide an Australian or Overseas Police Clearance Certificate.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant provided to the Tribunal a copy of the delegate’s decision which summarises the visa application. The delegate says that the applicant was requested in writing on 19 March 2024 to provide an Australian and Overseas Police Clearance Certificate. On 15 May 2024 the Department had not received a response and refused the visa application.

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. On 6 June 2024 the applicant provided to the Tribunal an Australian National Police Certificate dated 17 May 2024, Brazilian Federal Criminal History Check dated 15 May 2024 and a São Paulo State Criminal History Record Check dated 15 May 2024. The Tribunal is satisfied that the police checks are genuine and current and are valid for the purposes of reg 2.03.AA(2)(a).

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

    Conclusion

11. On the basis of the above findings, the applicant meets reg 2.03AA(2).

    DECISION

12. 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).

    P. Maishman
    Member