Garcia Romero (Migration)

[2024] AATA 3409

Garcia Romero (Migration) [2024] AATA 3409 (27 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andres Felipe Garcia Romero

REPRESENTATIVE:  Miss Lina Li (MARN: 1683761)

CASE NUMBER:  2414105

HOME AFFAIRS REFERENCE(S):          BCC2022/513824

MEMBER:Anne Grant

DATE:27 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·Regulation 2.03AA(2)

Statement made on 27 August 2024 at 5:19pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – 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 500.217; 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 Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 3 March 2022. The criteria for a Student (Temporary) (Class TU) 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, 500.217 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).

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. 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.

5. The delegate refused to grant the visa on 10 May 2024 on the basis that the applicant did not meet reg 2.03AA because they had not provided Australian and Colombian criminal history checks.  Although the applicant had provided a completed form 80, the relevant criminal history checks had not been provided before the delegate made their decision.  

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 a statement by appropriate authorities in Australia and Colombia that provides evidence about whether or not the person has a criminal history.   

   Has the applicant provided a statement from an appropriate authority?

8. The delegate made a request for the applicant to provide the statements from appropriate authorities about their criminal history on 10 November 2023.  A completed form 80 was also requested.  The Form 80 was provided by the applicant to the department on 8 December 2023.

9. By the time the delegate made the decision, the applicant had not provided the requested criminal history statements. 

10. On 29 May 2024, the applicant provided an Australian Federal Police National Police Certificate dated 11 December 2023.  This states that the applicant has a criminal record of having been convicted of an offence of ‘light fire in open air total fire ban’ at the Korumburra Magistrates Court on 19 July 2018,  and sentenced to pay a fine of $400.

11. On 19 July 2024, the applicant provided certificate and statement from the Republic of Columbia which state that they have no criminal record in Colombia.  The statement is dated 8 July 2024. 

12. The applicant has provided a statement from the appropriate authorities in Australia and Colombia and therefore meets reg 2.03AA(2)(a).

    Conclusion

13. The applicant had already complied with the request for the applicant to provide a completed approved Form 80, therefore the requirement in reg 2.03AA(2)(b) does not apply.

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

    DECISION

15. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

    ·Regulation 2.03AA(2).

    Anne Grant
    Member