Farrell (Migration)

[2024] AATA 2972

Farrell (Migration) [2024] AATA 2972 (7 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mandy Farrell

REPRESENTATIVE:  Mr Adeel Khan

CASE NUMBER:  2412171

HOME AFFAIRS REFERENCE(S):          BCC2023/6900889

MEMBER:Paul Windsor

DATE:7 August 2024

PLACE OF DECISION:  Melbourne

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 07 August 2024 at 8:46 am

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history statements – certificates from Australia and home country 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 28 November 2023. 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. Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations. This includes reg 2.03AA which 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).

3. 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.

4. The delegate refused to grant the visa on 26 April 2024 on the basis that the applicant did not meet reg 2.03AA because she did not provide a statement by an appropriate authority in the form of an Overseas Police Clearance Certificate, when requested to do so.

5. The applicant sought review of the delegate’s decision on 15 May 2024 and subsequently provided the requested statement.

6. In reaching its decision the Tribunal did not consider it necessary to hold a hearing, 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant has provided statements by appropriate authorities that provides evidence about whether or not she has a criminal history.

8. The Department of Home Affairs wrote to the applicant on 27 March 2024 requesting that she provide overseas police clearance certificate(s) from each country where she had lived for a total of 12 months or more in the last 10 years. The applicant was given 28 days within which to provide the requested information. The applicant had not provided the requested information at the time the delegate refused to grant the visa.

   Has the applicant provided statement from appropriate authorities?

9. On 17 June 2024, the Tribunal wrote to the applicant requesting that she provide overseas police clearance certificates from each country where she had lived for a total of 12 months or more, in the last 10 years.

10. On 2 July 2024, the applicant submitted an Irish Police Certificate issued on 9 May 2024. She also submitted an Australian Federal Police Digital National Police Certificate issued 26 February 2024, which previously had been provided to the Department (on 27 February 2024).

11. As the applicant has now provided the requested statements from appropriate authorities, the Tribunal finds that they meet reg 2.03AA(2)(a).

    Conclusion

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

    DECISION

13. 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).

    Paul Windsor

    
    

    Member