Fourel (Migration)

[2024] AATA 3420

Fourel (Migration) [2024] AATA 3420 (28 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Morgane Fourel

REPRESENTATIVE:  Mr Jorge Eliecer Gamba Jaramillo (MARN: 1805594)

CASE NUMBER:  2415800

HOME AFFAIRS REFERENCE(S):          BCC2024/421472

MEMBER:Sheridan Aster

DATE:28 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 reg 2.03AA(2) or the Migration Regulations 1994 (Cth).

Statement made on 28 August 2024 at 11:34am

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history – statement from an appropriate authority – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 408.216; Schedule 4, PIC 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 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, cl 408.216(1) 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. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80.

5. The delegate refused to grant the visa on 17 May 2024 on the basis that the applicant did not meet reg 2.03AA because she did not provide the requested statements from relevant authorities.

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 has provided statements by the appropriate authorities in France and Australia that provide evidence about whether she has a criminal history.

8. The applicant supplied the Tribunal with a statement of National Criminal Records issued by the French Republic Justice Ministry on 18 May 2024 and a National Police Clearance issued by the Australian Federal Police on 27 May 2024.

9. The applicant has provided statements from the appropriate authorities and therefore meets reg 2.03AA(2)(a). There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in reg 2.03AA(2)(b) does not apply.

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

    DECISION

11. The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets reg 2.03AA(2) or the Migration Regulations 1994 (Cth).

    Sheridan Aster
    Member